New York Probate

In New York, probate is the legal process of transferring a deceased person’s assets to his heirs in an orderly and supervised manner. The legal definition is “the act of presenting a will to the court to prove its validity.” However, the term probate also commonly refers to the following other Court proceedings:

• Administration
• Administration c.t.a.
• Administration d.b.n.
• Voluntary (or Small Estate) Administration
• Ancillary Probate
• Ancillary Administration
• Wrongful Death Compromise
• Executor’s Accounting

Generally, 2 months to 3 years, typically 15 months. Below are estimated times for each step of the probate process:

1. Getting letters testamentary or letters of administration:  2 to 6 months. Typically 3 months.
2. Administering the estate (collecting assets, paying debts, filing taxes, etc.):  7 months to 3 years. Typically 9 months.
3. Closing the estate:  1 month to 1 year. Typically 3 months.

For a more detailed explanation, read our full post “How Long Does Probate Take in New York?”

Probate usually includes four steps: (1) appointing an executor, (2) collecting estate assets, (3) paying estate debts and expenses, and (4) closing the estate.

(1) Appointing an executor. The first step in probate is to ask the local probate court (also known as the Surrogate’s Court) to appoint a legal representative for the estate, usually an executor. The executor must file all the necessary papers with the court to receive letters testamentary, which are court certificates that prove that the executor has legal authority to act on behalf of the estate.

(2) Collecting estate assets. Once the executor has received letters testamentary, he must identify and collect all assets owned by the deceased person and place them into estate accounts. The executor must also obtain independent valuations of any assets that are illiquid or difficult to value.

(3) Paying estate debts and expenses. The executor must pay: all estate administration expenses incurred during the course of the probate process; any taxes due, including estate tax; and any debts owed by the deceased person at the time of death.

(4) Closing the estate. The executor closes the estate by preparing a formal report of all estate transactions, known as the executor’s accounting. Once the accounting has been approved, the estate is closed and the executor may release the remaining estate funds to the heirs, as directed by the will or by New York default inheritance law.

In New York, probate is necessary to collect estate assets, organize estate debts, and generally put the deceased’s final affairs in order. Only an executor with letters testamentary has authority to any of those things on behalf of the estate.

Collect assets. Most people have assets in their individual name, such as bank accounts, brokerage accounts, or real estate. This does not include joint assets or assets with a named beneficiary, which automatically pass to the surviving joint owner or beneficiary, such as the surviving spouse.

General administration. There are countless administrative tasks that may only be done by a duly appointed executor with court authority, such as making funeral arrangements, forwarding mail, and accessing the residence to clean out personal belongings.

Organize and finalize debts. The probate process ensures that all legitimate debts are paid with finality by requiring any would-be creditors to submit their bills to the probate court, subject to a judge’s review. New York probate law sets a deadline for creditors to submit their bills, and once the deadline has passed, the surviving family can move on without worrying about unknown estate debts.

Bring lawsuits. Even after a person has died, there are many situations when the estate needs a legally appointed executor to carry on lawsuits on behalf of the deceased. The most common example is a wrongful death action, but may also include claims from before death, such as personal injury or class actions lawsuits.

The total cost of New York probate is generally between 2.5% to 10% of the total value of the gross estate. The main probate costs are the executor’s commission and attorney fees.

Executor’s commission. The commission is the fee the executor receives for service to the estate. The commission is set by New York law (SCPA 2307) as a percentage of the estate assets ranging from 2.5% to 5% depending on the size of the estate.

Attorney fees. New York probate attorney fees are normally the same of the executor’s commission set by New York law, described above, but may vary based on the complexity of each case. In some cases, contingent fee probate may be appropriate, instead.

Some other common probate costs may include:

Court costs. Court filing fees range from $215 to $1,250, depending on the gross value of the estate. The fee schedule is posted on the New York Surrogate’s Court website. Other court costs (such as hiring a process server, purchasing a bond, publication fees, etc.) may cost additional hundreds, or even thousands of dollars.

Accounting fees. The probate process includes filing all final income tax returns and possibly estate income tax returns. Tax preparation fees range from a few hundred to over a thousand dollars, depending on the complexity of the return.

Appraisal fees. Professional appraisals are needed when an estate tax return is required or when the heirs or creditors disagree as to the value of the estate assets. Appraisal fees vary widely depending on the type of property.

Ancillary probate. Ancillary probate is the court procedure when a deceased person lived in one State and owned assets in another State. For example, if a person died a resident of Florida, but owned property in New York, then the person’s original probate would take place in Florida, followed by an ancillary probate in New York.

Estate tax. Estate tax is a Federal and State tax on a deceased person’s assets before passing to his heirs. The amount of estate tax is based on the overall value of the deceased person’s estate.

Executor. An executor is the person named in the will who is responsible for administering the estate. The executor must: probate the will, or hire a lawyer to do so; gather and manage all property; pay all bills and taxes; and distribute the remaining assets to the beneficiaries. The executor’s role is extremely time-consuming and requires financial savvy. Typically, the executor is an attorney, trust company, or a close family member.

Intestate. A person is intestate if they die without a will and New York’s default inheritance law applies to their estate. For example, if the person dies without a will and was survived by:

• a spouse only, then all to the spouse
• a spouse and children, then $50,000 to the spouse, 1/2 of the remainder to the spouse, and the other 1/2 divided equally among the children
• no spouse and children, then divided equally among the children
• no spouse and no children, then to the parents
• no spouse, no children, and no parents, then divided equally among the siblings

Letters testamentary. Letters testamentary are court certificates that prove that an executor has been duly appointed by the court. Also known as letters of administration, ancillary letters testamentary, etc. depending on the type of estate.

Probate. In New York, probate is the legal process of transferring a deceased person’s assets to his heirs in an orderly and supervised manner. The precise legal definition of probate is “the act of presenting a Will to the court to prove its validity.” However, the term probate is ordinarily used to describe the process for various types of estates, such as:

• Administration (no will)
• Administration c.t.a. (will, but no executor)
• Ancillary administration (no will, multiple jurisdictions)