Estate & Trust Administration

The death of a relative can be an especially difficult time.  After the funeral, you may get contacted by an attorney regarding your relative’s Last Will and Testament.  It can be challenging to understand what the attorney is telling you, and you may not know what to do next.

What follows are some basic questions and answers related to the probate of a Will.  This Q&A will help you better understand the probate process and what your rights are if you were not mentioned in your relative’s Will.

Questions and Answers About the Probate Process

What does it mean to “probate” a Will?

After someone dies, their Will is submitted to probate in the Surrogates Court of the county where they passed away.  A petition is filed with the Court seeking “letters testamentary” to be granted to the named executor in the Will.

What happens if the decedent died without a Will?

If a decedent dies without a Will and has property in their own name, then it will pass to beneficiaries pursuant to the New York laws of intestacy.  For more information on intestate estates, see “Questions and Answers on Intestate Succession in New York” below.

What are letters testamentary?

The issuance of letters testamentary is a grant of authority by the Court which allows the executor to collect the assets of the decedent, pay the estate’s expenses and debts, and distribute the remaining assets to the beneficiaries.

Why would I get notice that a Will is being probated?

The two most common reasons you would get notice is if you were named as a beneficiary in the Will or if you were an intestate distributee of the decedent.

What is an intestate distributee of the decedent?

An intestate distributee of a decedent is someone who would receive a share of the decedent’s estate if the decedent did not have a Will.  This group of people is sometimes more commonly referred to as the decedent’s legal heirs.

Why do beneficiaries in the Will get notice?

The law generally requires that a notice of probate be sent to all beneficiaries.

What notice do intestate distributees get?

Intestate distributees are usually asked by the attorney for the estate to sign what is known as a “Waiver and Consent” form.  This form indicates that the distributee waives the need for any further legal notice prior to the executor being granted letters testamentary, and it indicates that the distributee consents to the issuance of letters testamentary to the proposed executor.

If I am a distributee, do I have to sign a Waiver and Consent?

If you are a distributee, but you have received nothing in the Will, you may be reluctant to sign a Waiver and Consent.  If you do not sign a Waiver and Consent, the Court will issue a Citation, which will be served on you.  A Citation is a notice by the Court that if you would like to be heard on whether a proposed executor is issued letters testamentary, you will need to appear in Court on a particular future day known as the “return date”.

If I do not sign a Waiver and Consent and I show up on the return date in Court, what happens?

The Court will ask you if have any objections to the probate of the Will, and if you do, the Court will generally give you some time to put your objections in writing and file them with the Court.

Should I have an attorney if I appear in Court on the return date?

It is wise to have an attorney so they can advise you whether any concerns you have over the probate of the will are potentially legitimate objections that can be successfully made in Court.

What kind of objections would be legitimate objections?

Legitimate objections could relate to any of the following issues:  1) the testator (the person who made the Will) lacked the mental capacity to make a Will, 2) the testator was subject to undue influence by another person at the time of the Will, or 3) the Will was not executed properly.  If any of these objections are brought, it means that the objector is bringing what is sometimes known as a “Will contest”.

Is it difficult to make these types of objections successfully?

Yes.  The initial burden to demonstrate that the Will was properly executed by someone with requisite mental capacity and who was not subject to undue influence falls to the person seeking probate of the Will.  After they have proven those elements, the burden shifts to the person objecting to the probate of the Will. The law generally favors going forward with the probate, unless there is strong evidence offered by the objecting party.

It is important to remember that even if you were a close relative of a testator, the testator is wholly within their legal rights not to leave you anything in their Will.  The only exception to that is in the case of a surviving spouse.  If a decedent spouse leaves nothing to their surviving spouse, the surviving spouse can elect against the decedent spouse’s will and receive generally one-third of their estate.

What happens if the probate of the Will is successful and Letters Testamentary are issued?

In that case, the Executor then has the authority to move forward with the estate attorney and administer the estate.  The administration of the estate will include activities like:

  • Marshalling the assets of the estate.
  • Paying debts and claims by creditors
  • Filing an Inventory of Assets with the Court
  • Filing all necessary personal income tax returns
  • Filing estate income tax and estate tax returns, if needed
  • Distributing of the remaining assets to beneficiaries

Does the Executor handle the marshalling of all assets of the decedent?

No, some assets are non-probate assets and pass to beneficiaries outside of the probate of the decedent’s Will.  Examples include:  retirement accounts like IRAs and 401Ks, jointly owned property, life insurance payable to a beneficiary, bank accounts that are in trust for (ITF) a beneficiary, investment accounts that are transfer on death (TOD) to a beneficiary, and property in a living trust.

Is there a priority as to which creditors get paid first?

Yes.  For more information on the payment of creditors, please “Questions and Answers on Decedent Debts and Claims” below.

Questions and Answers on Intestate Succession in New York

If you die without a Will, do your assets go to the State?

No.  Your assets will go to your closest relatives under the New York Estates Powers and Trusts Law (EPTL).  EPTL section 4-1.1 has all the provisions regarding which relatives would receive your assets, if you die without a Will.  Below is a chart that explains the most common rules of intestate succession in New York, pursuant to EPTL section 4-1.1.

If you die without a Will and you leave: Your estate goes to:
A surviving spouse Spouse inherits everything
A surviving spouse and children Spouse inherits first $50,000 and ½ of the balance of your estate and your children get the other ½
Children but no surviving spouse Children inherit everything
Parents but no spouse or children Parents inherit everything
Siblings but no spouse, children, or parents Siblings inherit everything


If you die without a Will and have no surviving spouse, no children, no parents, and no siblings that survive you, then your estate will be inherited by more distant relatives.  In addition to what your family inherits under the rules of intestate succession pursuant to New York EPTL section 4-1.1, your family is also entitled to certain exempt property pursuant to New York EPTL section 5-3.1.

What assets comprise an intestate estate of a decedent?

The assets of an intestate estate generally include the assets that are titled in the decedent’s name only at the time of their death.  Not included in the intestate estate is anything they owned jointly with someone else (i.e. a joint checking account) or anything they owned which was payable to a named beneficiary upon their death (i.e. an Individual Retirement Account – IRA).

Is there a downside to having your estate pass by intestacy?

Although the State provides for rules of intestate succession, it is important to have a Will as part of your estate plan, because the rules of intestate succession may not be consistent with your wishes.

For example, most married couples would like their entire estate to be left to their surviving spouse, even if they leave children behind.  The expectation is that the surviving spouse would then provide for the children.  As you can see from the chart above, if you die without a Will and have a spouse and children, part of your estate will go directly to your children – which is quite likely inconsistent with your wishes.

Even if you want some portion of your estate to be given to your children, you may not want your children to receive those assets outright.  Pursuant to the rules of intestate succession, anything that is inherited by your children is received by them directly and they have total control of the assets once they reach the age of eighteen.  Most parents prefer to have their estate assets managed for the benefit of their children, until they reach a more mature age.

A properly drafted Will can also allow you to take advantage of tax planning techniques that may reduce the taxability of your estate.  In addition, if you have minor children, a Will can provide for your wishes regarding their care if you pass away before they reach the age of eighteen.  In your Will, you can nominate guardians of their property and person who will act as their surrogate parents in the event you pass away during their minority.

Questions and Answers on Decedent Debts and Claims

Which creditors get  paid first?

Under New York State law, the priority for payment of claims is as follows:

  • administration expenses, including fees and commissions,
  • reasonable funeral expenses,
  • obligations owed to the federal or state governments,
  • debts from docketed judgments or entered decrees, and
  • unsecured claims.

The order of priority is important, because you may find that the creditors with the lowest priority may be the first to request payment.  Oftentimes, credit card companies are the first to call, but it is important to understand that they have the lowest priority to get paid because they have unsecured claims.

When do creditors get paid?

Estates in New York must stay open for seven months, in order to allow creditors to come forward and make their claims.  After seven months, the executor may pay the claims of all known, legitimate creditors, in the order set forth above.

If an executor pays all claims, in the proper order by priority, more than seven months after being appointed, then the executor avoids any potential argument that they should be personally liable for any claims.  If a legitimate claim arises after all the estate funds are distributed, the creditor may, in certain cases, pursue his claim against the beneficiaries who received the estate funds.

Are mortgages handled differently?

When it comes to real property, the decedent may have had a mortgage at the time of his death.  If that property is then specifically given to a beneficiary in his Will, the real property is given to the beneficiary subject to the mortgage.  Put another way, it is the beneficiary’s obligation to satisfy the mortgage and not the estate’s burden.  The exception to this rule is when the decedent specifically states in his Will that he wants the general assets of the estate to satisfy the mortgage before the property is transferred to the beneficiary.

In cases where a beneficiary receives real property subject to a mortgage, the beneficiary can potentially keep the property and re-finance the mortgage in their own name.  In the alternative, the beneficiary can simply sell the real property, satisfy the mortgage, and then keep the net sale proceeds of the sale.

What if there is not enough money to pay debts?

If the debts of the estate exceed the assets, then the estate is insolvent.  In those cases, the named executor in the Will may be unwilling to file the estate proceeding.  If the named executor is unwilling, one of the creditors may bring the proceeding and seek to get the County Treasurer appointed as Administrator of the estate.  In those cases, the creditors may get some, if not all, of what they are due.

What if there is not enough money to pay all the bequests?

Sometimes there are assets in the estate, but not enough to pay all the bequests.  For example, a decedent might have an estate worth $100,000 with debts of $40,000.  The net estate in that case is $60,000.  If the decedent’s Will leaves $50,000 each to his son and his daughter, then the children will have their bequests reduced to $30,000 each because only a total of $60,000 is available to satisfy the bequests.

Is any property exempt from creditor’s claims?

Certain property is exempt from creditors’ claims.  Exempt property includes: life insurance proceeds on the decedent’s life payable to an individual beneficiary, some pensions and annuities, and family exempt property under section 5-3.1 of the Estates Powers and Trusts Law.  Family exempt property includes certain property that passes outside of a decedent’s estate to his close family.  For example, a surviving spouse of a decedent may receive the decedent’s car, up to a value of $25,000.

Estate Administration in General

Whether you need to probate a Will or start an intestate administration proceeding, the process can be challenging.  Our experienced estate administration attorneys are well versed in probate and intestate administration proceedings and offer a compassionate, knowledgeable and superior level of personal service.  If you need advice about estate administration, please call O’Connell and Aronowitz today at (518) 462-5601.



Estates and Trust FAQ’s


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