PROBATE IN NEW YORK
BY
MICHAEL J. LOMBARDO, ESQ.

Many people hear horror stories about probate. Probate is a court process whereby the debts of the deceased individual (“Decedent”) are paid and assets of the Decedent over which the Surrogate’s Court has jurisdiction are transferred to the heirs and beneficiaries of the Decedent either under the terms of a Will or, if there is no Will, then in the manner provided under the laws of New York State. If there is a Will, the person responsible for performing these tasks is known as the “Executor”. If there is no Will, the person responsible for performing these tasks is known as the “Administrator”. Probate in New York is not as bad as it is in some other states. In most cases, all parties involved cooperate and the process is one that can and does proceed smoothly and quickly.

What is the Probate Process?

The probate process is started by someone presenting the Decedent’s Will to the Surrogate’s Court in the county in which the Decedent resided along with a death certificate. This person is usually the person named in the Will by the Decedent to act as Executor. It is important to understand that just because a person is named in a Will as Executor does not mean that the person named can act on behalf of the estate as soon as the Decedent dies. The person named in the Will to act as Executor must be appointed by the Surrogate’s Court before there is any authority to act. Along with the Will and a death certificate, the Surrogate’s Court is usually presented with (1) a Petition asking that the Will be admitted to probate and that the person named in the Will be appointed by the Surrogate’s Court as Executor to act on behalf of the estate, (2) consents signed by the distributees (those persons who are entitled to the assets of the Decedent if there was no Will whereby consent is given to the probate of the Will), (3) proof that notice of the probate of the Will has been given to those who are named in the Will as a beneficiary and (4) the documents necessary to prove that the Will was properly executed. If there are any trusts created by the Will, then a request is included in the Petition asking the Surrogate’s Court to appoint the persons named in the Will as the Trustees of the trusts. If there is no Will, then one of the heirs of the Decedent will present the Surrogate’s Court with a Petition to be appointed as Administrator of the Decedent’s estate and to serve functions similar to that of an Executor had there been a Will. Assuming there is no question about the validity of the Will, once the Petition and the other required documents are presented to the Surrogate’s Court, an Executor can be appointed within a matter of days.

Over What Assets Does the Executor or Administrator Have Authority?

Once the Executor or Administrator is appointed by the Surrogate’s Court, the person appointed has authority over those assets of the Decedent that are not disposed of outside of the probate process. Assets disposed of as part of the probate process make up the probate estate. Assets disposed of outside of the probate process are assets of the Decedent for which the Decedent has named a beneficiary or to which title automatically transfers to a joint owner upon the Decedent’s death. For example, if the Decedent owned a life insurance policy at the time of death and named a spouse as the beneficiary under the life insurance policy, the proceeds from the life insurance policy will not be part of the probate estate. Likewise, if a Decedent owned a house with a spouse as husband and wife, the spouse automatically becomes the sole owner of the house upon the death of the Decedent, and therefore the house is not part of the probate estate. However, if the Decedent had an interest in investment property owned as a tenant in common with the Decedent’s son, then the Decedent’s interest in the investment property will be an asset to be included in the probate estate. The attorney who has been retained to assist the Executor or Administrator will be able to let you know what assets make up the probate estate.

Are There Probate Fees?

There are probate fees that need to be paid to the Surrogate's Court. The probate fee is based on the value of the probate estate as of the date of death. Probate fees in New York are as follows:

Value of Probate Estate	Probate Fee
Less than $10,000	$45.00
$10,000 but under 20,000	$75.00
$20,000 but under 50,000	$215.00
$50,000 but under 100,00	$280.00
$100,000 but under 250,000	$420.00
$250,000 but under 500,000	$625.00
$500,000 and over	$1,250.00

What Happens During the Administration of the Estate?

During the administration of the estate, the Executor or Administrator will locate the Decedent’s assets that make up the probate estate and have the assets transferred to the estate. Final income tax returns for the Decedent need to be filed, and if the estate is in excess of the applicable filing threshhold (e.g. $11,580,000 in 2020) or if portability is elected, an estate tax return needs to be filed (New York’s estate tax exemption is $5,740,000 if the date of death is on or after January 1, 2019, and there are differences between the Federal law and New York law should the value of the estate exceed the applicable exemption amount). Taxable income received by the estate (like interest and dividends) may require the filing of an income tax return by the estate. For more information on the duties of an Executor during the period of the estate administration, see the article Duties of Executors.

When Can an Estate be Closed and Distribution of Assets Made?

An estate that is not required to file an estate tax return usually can be closed any time after 7 months following the appointment by the Surrogate’s Court of the Executor or Administrator (the time period for creditors to file claims against the estate). If an estate tax return is required to be filed, then the estate must stay open until a close out letter is received from the Internal Revenue Service and/or New York State Tax Department.

Is There Any Other Proceeding Available for a Small Estate?

There is a special procedure that can be followed if the value of all of the assets that would otherwise be subject to the probate process is less than $50,000. This procedure is not available to administer real estate, even if the value of the all assets, including the real estate that is individually owned (e.g. not jointly owned with another), is less than $50,000.

CAUTION: THIS ARTICLE IS INTENDED TO PRESENT GENERAL INFORMATION AND IS NOT INTENDED TO BE A SUBSTITUTE FOR CONSULTATION WITH LEGAL COUNSEL.

Last Update: December 7, 2019