Estate planning can feel like a challenge when you aren't a lawyer. Thankfully, most of the resources you need to draft your estate planning documents are available online. In this article, FastWill gives you pointers about the New York probate process with citations to the legal code for more information.
Guide to Probate in New York
Probate in New York, like in many other states, is the legal process through which a deceased person's estate is administered, and their assets are transferred to heirs or beneficiaries according to their will or state intestacy laws. Intestacy laws apply only when there is no Will. Here's how probate in New York generally works:
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Initiating Probate: Probate in New York is typically initiated by the filing of a petition with the Surrogate's Court in the county where the deceased person, known as the "decedent," was a resident at the time of their death. The petition is often filed by the person named as the executor in the decedent's Will or by an interested party if there is no Will.
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Appointment of Executor: If there is a Will, the court reviews it to ensure it is valid and then appoints the person nominated as the executor to oversee the administration of the estate. If there is no Will or if the nominated executor is unable or unwilling to serve, the court will appoint an administrator.
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Asset Inventory: The executor or administrator is responsible for identifying, collecting, and valuing the decedent's assets. This may include real estate, bank accounts, investments, personal property, and more. Some assets are not included in the probate estate. They include things like life insurance policies, retirement accounts, NFTs, pay-on-demand accounts, and jointly owned property with rights of survivorship.
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Notice to Creditors: The executor or administrator must provide notice to known creditors and publish a notice to creditors in a local newspaper. Creditors then have a specified period (usually seven months) to file claims against the estate.
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Payment of Debts and Taxes: Outstanding debts, including funeral expenses, taxes, and valid creditor claims, must be paid from the estate's assets before distributing inheritance to beneficiaries.
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Asset Distribution: After satisfying debts and expenses, the remaining assets are distributed to the beneficiaries named in the Will or, if there is no Will, according to New York's intestate succession laws. The court oversees this distribution process to ensure it follows legal procedures.
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Final Accounting and Report: The executor or administrator must provide a final accounting and report to the court detailing all financial transactions related to the estate's administration. This report is subject to court approval.
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Court Review and Closing: Once the court is satisfied that all matters have been properly handled, it will issue an order to close the estate.
The probate process in New York can be complex, and it often involves legal and administrative fees. Executors or administrators are required to fulfill their duties diligently and in accordance with state laws.
What Laws Govern Wills in New York?
The substantive laws applicable to New York Wills are found in the New York Code, Estates, Powers & Trusts (EPT) CHAPTER 17-B, Part 2. Generally, the requirements to make a Will in New York are as follows. First, you have to be at least 18 years old. Second, you must have the mental capacity to know what assets you have and who your beneficiaries are and to know that the Will is the document that will dictate the distribution of the assets. Third, the Will must be witnessed by two people who are at least 18 years old and who are not beneficiaries of the Will.
Notarization is not mandatory under New York law. However, FastWill recommends notarization because it simplifies the probate process. When a New York Will is notarized, it is considered "self-proving" because your witnesses won't need to testify in court.
What Laws Govern Probate for People Who Die Without a Will in New York?
When a person dies without a Will in New York, this is called dying "intestate." When a person dies intestate, the person's assets must go through probate, where the Surrogate's Court will distribute them in according with New York law. The law describes a hierarchy that is based on a person's legal relatives and their relationship to the person who died. You can find the law that governs intestacy in New York in EPTL 4-1.1.
Law Covering Small Estate Probate in New York
In New York, if the value of a deceased person's estate is below a certain threshold, the person's family members may qualify for a simplified and expedited probate process known as "small estate administration" or "voluntary administration." This process is designed to be quicker and less formal than regular probate. The specific threshold for a small estate varies depending on the circumstances but generally falls within the following guidelines:
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Surviving Spouse: If the decedent's surviving spouse is the sole distributee (heir) of the estate and the estate's value, after deducting debts and liens, is $50,000 or less, the surviving spouse can use the small estate administration process.
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Other Distributees: If there are other distributees (heirs) besides the surviving spouse, and the total value of the estate, after deducting all debts and liens, is $30,000 or less, the small estate administration process may be used.
The threshold is currently $50,000, but state law regularly adjusts that amount. For more information about the small estate probate process in New York, see the Surrogate's Court Procedure Act (SCP) CHAPTER 59-A, ARTICLE 13.
Draft New York Estate Documents Online
New York law makes it easy to draft estate planning documents online. Use this guide to be sure you understand the law and follow the instructions to ensure your will is legally binding. FastWill can help you make an online Will that follows the New York State laws.
