Probate is the legal process of administering the estate of a deceased person. In the state of New York, probate laws are governed by the Surrogate’s Court Procedure Act and the Estates, Powers, and Trusts Law.
When a person dies in New York, their assets are distributed according to their will, if they had one, or according to the state’s laws of intestacy if they did not. A will is a legal document in which a person specifies how they want their assets to be distributed after their death. If a person dies without a will, their assets are distributed according to the laws of intestacy, which dictate that the assets go to the person’s closest relatives.
The probate process begins when the will is presented to the Surrogate’s Court, which is the court that has jurisdiction over probate matters in New York. The court will then appoint an executor, who is responsible for managing the deceased person’s estate and distributing the assets according to the will or the laws of intestacy.
The executor is responsible for collecting all of the deceased person’s assets, paying any debts and taxes, and distributing the remaining assets to the beneficiaries. This process can take several months to a year or more, depending on the complexity of the estate.
Is Probate Required in New York?
In New York, probate is required for estates. It is the procedure used to transfer those assets to the heirs. State laws on probate establish guidelines and standards for how it should be done.
Type Of Probate Proceedings In New York
In New York, there are two types of probate (laws) proceedings: formal and informal. Formal proceedings are used when there is a will and the executor is named in the will. Informal proceedings are used when there is no will or the will is not valid.
Formal proceedings begin with the filing of a petition with the Surrogate’s Court. The petition must include the will if there is one, and a list of the deceased person’s assets and debts. The court will then issue letters of testamentary, which give the executor the authority to manage the estate.
Informal proceedings begin with the filing of a petition with the Surrogate’s Court. The petition must include a list of the deceased person’s assets and debts, as well as a list of the person’s next of kin. The court will then issue letters of administration, which give the administrator the authority to manage the estate.
In both formal and informal proceedings, the executor or administrator is required to give notice to all beneficiaries and heirs of the probate proceedings. The beneficiaries and heirs have the right to object to the probate of the will or the appointment of the executor or administrator.
In New York, there are also several types of probate proceedings that can be used to avoid the traditional probate process. These include:
- Summary administration: This type of probate is used when the estate is small and there are no disputes among the beneficiaries. It is a simplified process that can be completed in a few weeks.
- Affidavit of succession: This type of probate is used when the deceased person’s assets are held in joint tenancy or as tenants by the entirety. It allows the surviving joint tenant or tenant by the entirety to take ownership of the assets without going through probate.
- Small estate affidavit: This type of probate is used when the deceased person’s assets are worth less than $30,000. It allows the beneficiaries to take ownership of the assets without going through probate.
Ancillary Probate In New York
Ancillary probate (laws) in New York is a procedure used when a person dies with assets in New York, but their legal residence was in another state. In this case, the probate proceedings will be held in both states. The purpose of ancillary probate is to ensure that the assets in New York are properly distributed and that any debts or taxes owed in New York are paid.
The ancillary probate process begins with the filing of a petition with the Surrogate’s Court in New York. The petition must include a copy of the will if there is one, and a list of the deceased person’s assets and debts in New York. The court will then appoint an executor or administrator to manage the estate in New York.
The executor or administrator is responsible for collecting all of the deceased person’s assets in New York, paying any debts and taxes owed in New York, and distributing the remaining assets to the beneficiaries. This process can take several months to a year or more, depending on the complexity of the estate.
In addition to the ancillary probate proceedings in New York, the primary probate proceedings will also be held in the state where the deceased person had their legal residence. The executor or administrator appointed in New York will work with the executor or administrator appointed in the other state to ensure that all assets are properly distributed and that all debts and taxes are paid.
It’s worth mentioning that ancillary probate can be costly and time-consuming, as it requires the executor or administrator to navigate the probate laws in two different states. To avoid this, it’s a good idea to consider estate planning options such as creating a trust that holds assets in multiple states or transferring assets to joint tenancy or tenants by the entirety to avoid probate.
How Long Does Probate In New York Take?
The length of time it takes for probate (laws) in New York to be completed can vary greatly depending on the complexity of the estate and the efficiency of the court. In general, the process can take six months to a year or more.
The first step in the probate process is the filing of a petition with the Surrogate’s Court. Once the petition is filed, the court will appoint an executor or administrator to manage the estate. The executor or administrator is responsible for collecting all of the deceased person’s assets, paying any debts and taxes owed, and distributing the remaining assets to the beneficiaries.
The length of time it takes for the executor or administrator to collect and distribute the assets will depend on the number and type of assets, and whether any disputes arise. If the estate includes real property, it may take longer to transfer the property to the beneficiaries.
Another factor that can affect the length of time it takes for probate to be completed is the efficiency of the court. Some courts may have a backlog of cases, which can delay the probate process.
It’s also worth mentioning that if a will is contested, the probate process can take much longer, as it requires a court hearing to determine the validity of the will.
Do All Estates Have To Go Through Probate In New York?
Not all estates have to go through probate in New York. Certain types of assets and estate planning strategies can allow for the transfer of assets outside of probate.
Assets that typically do not have to go through probate include:
- Assets held in joint tenancy or tenants by the entirety: When assets are held in joint tenancy, the surviving joint tenant automatically assumes ownership of the assets upon the death of the other joint tenant. Similarly, when assets are held in tenants by the entirety, the surviving tenant automatically assumes ownership of the assets upon the death of the other tenant.
- Assets held in a trust: Property held in a trust can be distributed to beneficiaries outside of probate, as the trust document specifies how the assets should be distributed upon the death of the grantor.
- Retirement accounts and life insurance policies: These types of assets typically have a designated beneficiary who will receive the assets upon the death of the account holder or policyholder.
- Small estates: New York has a simplified probate process for small estates, which are estates valued at less than $30,000, and do not require the appointment of an executor or administrator.
Even if an estate does not have to go through probate, the executor or administrator may still have to file a petition with the Surrogate’s Court in order to transfer the assets to the beneficiaries.
Does A Will Have To Be Probated In New York?
In New York, a will does not have to be probated if the assets of the estate can be transferred outside of probate. However, if the assets of the estate cannot be transferred outside of probate, then a will must be probated.
When a will is probated, the court will determine its validity and appoint an executor or administrator to manage the estate. The executor or administrator is responsible for collecting all of the deceased person’s assets, paying any debts and taxes owed, and distributing the remaining assets to the beneficiaries according to the terms of the will.
If the will is contested, the probate process can take much longer, as it requires a court hearing to determine the validity of the will.
How Long Do You Have To File Probate After A Death In New York?
There is no set time limit for when a probate proceeding must be filed after death. However, it’s generally recommended to start the process as soon as possible in order to avoid any delays and to ensure that the assets of the estate are properly managed.
When a person dies, the executor or administrator of the estate must file a petition for probate with the Surrogate’s Court within a reasonable time after the death. The executor or administrator is responsible for notifying the beneficiaries and creditors of the estate, and for taking steps to collect and preserve the assets of the estate.
Also, note that if an estate remains unadministered for a long period of time, the court may appoint a public administrator to take over the administration of the estate.
If the estate includes real property, the executor or administrator may need to file a petition for probate within a certain period of time in order to avoid the property being subject to a “right of election” claim. The right of election allows a surviving spouse or child to claim a share of the decedent’s real property regardless of the terms of the will.
Ways To Avoid Probate In New York
There are several ways to avoid probate in New York, which can help save time and money and keep assets out of the court system. These include:
- Joint Ownership: One way to avoid probate is to hold assets in joint ownership with the right of survivorship. For example, if a person owns a home with another person and the title is in both of their names with the right of survivorship, the surviving owner will automatically inherit the property upon the other owner’s death, and the property does not have to go through probate.
- Beneficiary Designations: Another way to avoid probate is to use beneficiary designations for assets such as bank accounts, insurance policies, and retirement accounts. This means that the assets will pass directly to the designated beneficiary upon the owner’s death, without going through probate.
- Living Trust: A living trust is a legal document that allows you to transfer assets into a trust during your lifetime, and then have those assets distributed to your beneficiaries upon your death, without going through probate.
- Small Estate Affidavit: Under New York law, if the estate is valued at less than $30,000, the executor or administrator can file a small estate affidavit with the Surrogate’s Court, which allows the assets to be distributed to the beneficiaries without going through probate.
- Payable on Death (POD) and Transfer on Death (TOD): In New York, you can also set up payable on death (POD) or transfer on death (TOD) designations on certain types of accounts, such as bank accounts and securities, so that the assets will pass directly to a designated beneficiary upon your death, without going through probate.
It’s important to consult with an attorney who is familiar with the laws in New York.
Probate Code In New York
Probate statutes are found in The Laws of New York, Consolidated Laws on the state senate website Consolidated Laws of New York, Estates, Powers & Trusts – EPT | NY State Senate (nysenate.gov).
