How to probate in New York.

What to expect in New York probate

To successfully probate a will in New York — or to probate an estate with no will — you must successfully navigate all the requirements of the probate court. Fortunately EZ-Probate can help.


Do you need to go through probate in New York?

Probate is the process of transferring the deceased’s assets to the rightful heirs. Probate involves either “proving” the will (if there is one) in a court of law or verifying the legal heirs when there is no will (through a process called Intestate Succession). In addition to ensuring the appropriate transfer of assets, probate also guarantees that all the affairs of the deceased are closed  — that tax returns are filed, valid debts are handled, and funeral expenses are paid.


When do you need to probate in New York?

In most instances, you only need probate when there are assets that need a court order to be transferred.  Read more about what assets go through probate here.  

In New York, you must go through probate if:

1) The deceased was domiciled (lived) in New York and owned any assets in their single name that do not automatically transfer to someone else.

2) The deceased owned real estate in New York and was domiciled in a different state.

In certain special circumstances, probate may be needed even if there are no assets to probate. For example, probate may be necessary if there are future payments that will be made to the deceased and only the estate can be the recipient. Situations warranting probate without current assets could include things like expectation of future payments from a pension plan, a lawsuit where the deceased is the recipient of proceeds, or the family’s decision to initiate a wrongful death suit.


New York simplified procedures for small estates

Fortunately, New York does have simplified probate procedures for estates that fall under a certain value threshold.  In New York full probate is necessary only when there are assets in excess of $30,000 and/or real estate is involved. Estates that are valued at less than $30,000 and have no real estate can take advantage of a simplified procedure.


The probate process in New York

If you are handling an estate going through the regular probate process in New York, you will need to do the following:


1) Petition the court

Whether there is a will or not, you must open an estate in probate court to transfer assets from the deceased’s name. You do this by filing a petition with the court that provides the necessary information to determine the assets, debts and heirs of the estate.

You do not need to know exact amounts of assets and debts — just a rough estimate. The initial estimated estate value simply determines the court fee and whether you qualify for a simplified court procedure or if full probate is required.

Anyone can petition the court to initiate the proceedings, but only those nominated in the will — or those with priority of inheritance (when there is no will) — can be appointed as the personal representative of the estate, i.e. the person in charge of managing the estate.

Upon receiving a petition, the court will schedule a hearing so that if there is anyone who wants to challenge the petition or will, they can do so. Prior to that hearing, you will be required to provide notice to the next of kin, anyone named in an existing will, and any known creditors.

New York does not require a public notice (announcement in a news paper).

Potential Challenges:

When there is a will, the valid challenges are:

  1. There is a more recent valid will, and that will should be probated
  2. The deceased was not in their full mental capacity when they signed the will
  3. The signature of the will is forged

Intestate Succession in New York

If no will exists, a person can only challenge facts in the petition or the designation of administrator of the estate.

If there is no will, the priority of administration goes as follows:

  1. Surviving spouse, who receives $50,000 plus half of the deceased’s estate if there are surviving children
  2. Surviving children, who receive equal shares of the remaining half of the deceased’s estate if there is a surviving spouse
  3. If there is no spouse and there are no children, then:
    1. Surviving parents
    2. Surviving siblings
    3. Surviving aunts/uncles
    4. Surviving nieces/nephews
    5. Extended family

Once any challenges have been addressed, the court issues either Letters of Testamentary (if there is a will) or Letters of Administration (if there is no will). These letters provide the executor or administrator the official legal authority to act on behalf of the estate.


2) Create an accounting of the estate

Now that you have the authority from the court, you will be able to demand information from institutions, open safety deposit banks, ask for tax returns from the IRS and order credit reports to determine the assets and debts.

Within three months of your appointment as a personal representative, you will need to provide an inventory of the estate to the court.


3) Make payments to creditors  

The first responsibility of the estate — before transferring assets to heirs — is to make payments to creditors.  In New York a creditor can make a valid claim for up to seven months after the estate has been opened. If distributions are made to heirs before valid creditors are paid, the personal representative can be held personally responsible for those debts.  

However, if the estate is managed appropriately and simply has more debts than assets, the personal representative is not responsible for debts in excess of estate assets. The estate is insolvent.

In most cases, the priority of payments should be:

  1. Estate administration (court fees, legal fees, expenses to maintain estate, and compensation for personal representative)
  2. Funeral expenses
  3. Taxes (federal income, state income and any other local taxes, including any relevant real estate taxes)
  4. Secured Creditors (creditors with a lien on an asset)  
    • Note that even though secured creditors are fourth on this list, they are actually the first paid when the asset that secures the lien is sold. For example, banks are secured creditors on mortgages. If the deceased’s house is sold during the probate process, the bank is the first to be paid because their debt is tied specifically to the mortgage — even though paying taxes is higher on the creditor priority list.
  5. Unsecured Lenders (debts with no lien)


4) Make payments to heirs and devisees  

Only after debts and administrative expenses are paid do heirs and devisees receive distributions. An heir is the next of kin who inherits when there is no will. If there is a will, only those listed in the will (devisee) inherit — even if next-of-kin heirs have been left out, or “disinherited.”


5) Report your actions to the court and close the estate  

Once you have taken all of the actions listed above, you will need to report your actions to the court and all interested parties, then petition the court to close the estate and relieve you from your duties.