Trust & Estates Law Blog

What is Probate and How Does it Work?

The Secrets of the Probate Process in New York

There is a great deal of misunderstanding and misinformation regarding probate proceedings in New York.  People sometimes think the process is so costly, burdensome, and time consuming that they must engage in Trust planning to avoid this ghastly endeavor.  Let’s talk about what the probate process is, and what it isn’t, in order to dispel some of the myths about it.

How does my Will take effect?

If you sign a Last Will and Testament directing the distribution of your assets, your Will must be submitted for probate to take effect after your death.  Sometimes people think that a named Executor can control a decedent’s assets after they die without court involvement, but that is incorrect.

For a Will to be admitted (approved) for probate, the court must be satisfied that the Will is valid.  In determining whether to admit the Will for probate, the court will consider issues like whether it was properly executed, whether the signer was of sound mind, and whether any undue influence was involved. 

After a person dies, their Will must be submitted by the named Executor to the county Surrogates Court in the county where the decedent lived.  The Executor would seek “Letters Testamentary”, which is the legal term for the court’s authorization of the Executor to act regarding the decedent’s estate.  The court essentially appoints the Executor by issuing them Letters Testamentary.

What must be submitted to the court to probate the Will and obtain Letters of Testamentary?

The submission to the court can vary, but it will almost always include the following:  the original Will, the affidavits of the witnesses to the Will, a certified copy of the death certificate, a petition from the named Executor seeking Letters Testamentary, family tree affidavits, and Waivers and Consents and/or a Citation.  These documents are almost always drafted and submitted with the assistance of an attorney.

The petition from the Executor named in the Will gives information regarding the decedent, their assets and liabilities, their beneficiaries, and their legal heirs.  Heirship determines which people who would take from the decedent’s estate if there was no Will.  These people are determined by the laws of intestacy (a legal term for dying without a Will) and consist of the decedent’s closest blood relatives.  For example, if a woman dies survived by a husband and two children, those three collective people are her legal heirs.

Why does heirship matter?

For the Court to admit the Will for probate and issue Letters Testamentary to the Executor, it first must allow the heirs to have a say regarding whether those actions should be taken.  If a legal heir objects to the Will or the appointment of the named Executor, they can seek relief from the court to prevent the probate of the Will or the Executor’s appointment.

Once the heirs are on notice of the proposed Will probate and appointment of Executor, they can either sign what is known as a Waiver and Consent, stating they have no objection to the Will probate and Executor’s appointment, or they can refuse to do so.  If they refuse, then a Citation is issued by the court.  The Citation is like a court summons and it is served on the non-consenting heirs directing them that if they want to object to the probate of the Will or the appointment of the Executor, they must show up on a certain day in court and make their objections known.  If they fail to do so, the court will likely admit the Will to probate and appoint the Executor.  If they do show up in court, the judge will likely give the heir a reasonable amount of time to file their formal objections – which will later be heard by the court.

How often are Wills challenged?

The short answer is – not often.  In addition, of those Wills that are challenged, many are not successfully challenged.  In my experience, in most cases, the people in heirship either cooperate and sign Waivers and Consents or they fail to do so but do not appear in court and object.  As a result, most Wills are admitted to probate and the Executor appointed without undue delay or complication.  After this is accomplished, the next step is the administration of the Estate.

What is involved in the estate administration?

To administer the estate, the Executor marshals all the assets, pays all debts and claims, and distributes the remaining estate assets to the beneficiaries according to the Will’s provisions.  Pursuant to New York law, the estate must be kept open for seven months to allow creditors to make claims.  After the seven-month period, the estate may be closed.

How are estates closed?

Most estates are closed by way of an informal process whereby the beneficiaries each sign a Receipt and Release, which verifies that the beneficiary received what they were entitled to and confirms the Executor has no further responsibility to them.

In some cases, a more formal process occurs, which involves the filing of an Account by the Executor.  This can happen if there are disputes between the Executor and beneficiaries or between the beneficiaries themselves that cannot be settled amicably.  In general, if handled appropriately, the administration of the probate estate should not be unduly costly, burdensome or time consuming.

With all this said, there are certainly times when Trust planning, which may not involve the probate of a Will, is more appropriate.  It is also true that Trust planning and Will planning are not mutually exclusive.  To discover what option is best for you, it is advisable to consult with an experienced estate planning professional.

Matthew J. Dorsey, Esq. is a Senior Partner with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY.  Over his twenty-five years of practice, he has focused in the areas of elder law, estate planning, and estate administration.  Mr. Dorsey can be reached at (518)584-5205, and 

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