Probate FAQ

If a decedent dies without a valid Will, a family member may apply for Letters of Administration from the Surrogate’s Court. The process may be more complicated because the Court requires an Affidavit of Heirship stating the names of all related members of the family, including all distributees of the estate. The New York State rules of Intestate govern which family members are entitled to shares of the Estate.

Preparing a Will makes the most sense and ensures that the wishes of the Decedent shall be honored at death. A Will may be changed at any time while the decedent is living. If the decedent has no property, or everything is held in Joint tenancy with the decedent spouse, he/she may not need a Will, except if they die together in a plane crash or some other catastrophic event. Also, if the party has set up a Trust and deposits all property in the Trust, he/she may not need a Will. Most people with Trusts do not keep all their property in the Trust, so they still need a Will. If someone dies without a will, it is known as intestate. Learn more about intestacy laws in New York.

A Living Will consists of a Health Care Proxy and a Do Not Resuscitate Agreement. A Last Will is a document which designates who will inherit your property. Both documents are important.

The Executor/Executrix is the individual designated in a Will to manage the Probate of the Estate. Executors hire attorneys to assist them in the preparation of the Probate Petition, collect assets, pay creditors and distribute assets to Heirs and legatees.

Estates must be Probated in the Surrogate’s Court in the County where the decedent was domiciled at the time of his/her death. If the decedent owned real estate in another state at the time of her/his death, it may be necessary to conduct a second Ancillary Probate in the state where the property is located.

Probate is a complicated process. Of course, I may be biased, but, I believe it really helps to have an experienced Attorney on your side. If you have ever dealt with the Court before, you know how long it can take to do a simple thing. There are literally hundreds of rules and procedures to follow to complete the process.

A Trustee manages or administers a Trust and an Executor manages the Probate of the Estate. Some Wills incorporate Trusts within a Will (usually for the benefit of minor children). Thus, you may need both a Trustee and an Executor named in a Will. Each parties job is complete when the property they manage is fully distributed to the proper parties.

It is the Executor’s job to locate all Estate Assets. An experienced attorney knows how to go about locating assets including any assets that may have become unclaimed funds and have been sent to the State of New York. Attorneys will employ private investigators to track down funds and assets in other States, and assets that may be held in Trust or with partners or financial institutions. An experienced attorney is worth his weight in gold in this area.