An Overview of the Probate Process in New York

An estate lawyer in Brooklyn helping a client write her last will.

In New York, probate is necessary for assets solely owned by the deceased and haven’t been legally bequeathed to a designated beneficiary. This means that if the property owner passes away without a written will, the probate court will distribute the estate according to the state laws. However, if the property holder leaves behind a will that stands uncontested, the probate has a limited role to play.

What Are Probate And Non-Probate Assets?

Assets that can go through probate include solely-owned bank accounts, vehicles, antiques, cash, art pieces, and jewelry. On the other hand, non-probate assets include:

  • Any bank accounts with named beneficiaries.
  • Retirement accounts.
  • Life insurance policies with named beneficiaries.
  • Jointly held real estate.
  • Assets held in a trust.

Probate may also not be necessary if:

  • The total value of the estate is not big.
  • The estate only comprises non-probate assets.
  • The deceased left behind an estate plan to avoid probate.

A deceased individual’s last will.

A Quick Look at the Probate Process

Here is the process that follows:

  • The executor starts off the process by filing the probate petition. For this, they need a copy of the deceased’s death certificate and the original will. Both of these documents need to go to the Surrogate’s Court of the County, where the deceased individual last lived. The exact filing fee depends on the total size of the estate.
  • The next step is to itemize the inventory. The executor will collect the deceased’s physical and non-physical assets and appraise them as of the date of death.
  • The executor will also use the estate funds to pay any outstanding debts, liabilities, and taxes. If the estate doesn’t comprise enough cash, they might need to sell one of the assets.
  • The next step is to notify the distributees (legal heirs). The formal notice is called a citation, which also goes to the Surrogate’s Court. The estate is then distributed according to the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trust Law (EPTL).

Seek Guidance from a Probate Attorney Brooklyn

Other than this, probate law also involves matter related to contesting a will, spousal rights, estate planning for blended families, and administration of a trust. If the process sounds overwhelming, try seeking help from a well-experienced probate attorney.

There is no better option in Brooklyn than The Law Offices of Joseph A. Ledwidge, P.C. Joseph Ledwidge attorney himself has around 20 years of experience in dealing with complex estate matters.

Try us out. We also offer services in Queens, Manhattan, and Jamaica.

How Are New York State Marital Inheritance Laws Impacted by Marital Status at Time of Death?

When someone passes away, New York State inheritance laws can influence how the estate is divided among surviving heirs. If the deceased was married at the time of their death, this, too, can impact the probate process in New York.

However, even if the decedent was married at the time of their death, it does not mean that the surviving spouse will inherit their estate. There can be unique circumstances where the surviving spouse may not be entitled to inheritance.

Two money bags beside model of house

New York State marital inheritance laws require that an investigation regarding marital status be conducted to determine the validity of the marriage. The investigation must also determine whether there were divorce proceedings underway or if the divorce had been finalized, pending approval by the Family Court.

To illustrate how a surviving spouse may not be entitled to inheritance, let’s assume that a couple had filed for divorce prior to the death of the decedent. They had reached a separation and divorce settlement agreement and the agreement was accepted by the Family Court.

Their agreement contained specific wording that the divorced parties waived all rights to any survivorship rights and benefits. However, due to backlogs, the judge was not able to sign the official divorce judgment until after the decedent died.

Upon death, the surviving spouse claims marital inheritance under New York State marital inheritance laws. They even filed a right of election against the decedent’s estate because they want to attempt to get their share of the estate.

Yet, the surviving children know their parents were legally divorced. They contact a New York State probate lawyer for assistance in proving their parents were divorced. While the divorce judgment was not signed until after the decedent died, the judge had accepted and granted the divorce when they appeared in court prior to the decedent’s death.

As such, the New York Surrogate Court would conclude the decedent was divorced when they died. Therefore, the surviving ex-spouse would not be entitled to a share of the estate under spousal inheritance rights.

Please keep in mind, this is just one example and should not be viewed as binding legal advice, as every situation involving marital status at the time of death can and does vary. It is highly recommended to consult with a New York State probate lawyer if you need assistance in addressing issues relating to marital status and inheritance rights.

What if a Couple Is Legally Married at the Time of Death?

If the Surrogate Court determines the couple was still legally married at the time of death, and the surviving spouse is entitled to inheritance from the estate, then a few different things can occur. First and foremost, the Surrogate Court must determine if there is a will and whether the will is valid.

Family meeting with a lawyer

The Decedent Died with a Will

When there is a valid will, then the probate process in New York will be used to execute the decedent’s wishes as detailed in their will. The executor is officially named by the court as listed in the will. The executor is responsible for settling the estate and distributing inheritance to those named in the will.

If the decedent had attempted to disinherit their spouse or leave them less inheritance than New York State inheritance laws allow, the surviving spouse could file a right of election against the estate. Upon death, surviving spouses in New York are entitled to receive what is called an “elective share” of the decedent’s estate.

The elective share is equal to $50,000 or one-third of the net value of the estate, whichever amount is greater. In cases where the net value of the estate is less than $50,000, then the amount the spouse is entitled to receive will be reduced accordingly.

If there are no issues regarding marital inheritance and no one has any issues to contest the will, the executor will distribute property and assets according to the decedent’s will.

The Decedent Died Without a Will

Dying without a will in New York is handled differently from the probate process in New York. Instead, an administration proceeding is scheduled with the Surrogate Court. New York State inheritance laws and intestate laws will be applied to resolve the distribution of the estate.

The judge will select an administrator to serve as executor of the estate. The administrator has the same duties and responsibilities as an executor, except they will follow intestate laws to divide the estate.

The amount of the estate the surviving spouse receives will be determined by New York State marital inheritance laws.  If the couple had no children together, and the decedent had no children outside of the marriage, then the spouse will receive the entire estate.

If the couple had biological or adopted children together, or if the decedent had children outside of the marriage, then the surviving spouse receives $50,000 as their elective share, plus half of the remaining balance of the estate.

Surviving children then receive the other half of the remaining balance of the estate, which is distributed evenly between each child. So, if there were $100,000 left in the state after the surviving spouse received their elective share, and there were four surviving children, then each child would receive $25,000. This is just an example to illustrate how the intestate process works.

In cases where the decedent’s spouse preceded him or her in death, then the surviving children would receive the entire estate split equally among each child. Furthermore, if there were children that preceded the decedent in death, who had children of their own, then the grandchildren could have rights to the estate under New York inheritance law and intestate laws.

In addition, when certain assets are held jointly or where a beneficiary is named, such as bank accounts, retirement accounts, insurance policies, and so on, then New York intestate laws will distribute those assets to the joint account holder or named beneficiaries.

If there is no named beneficiary, then the asset is transferred to the decedent’s estate and is distributed according to New York inheritance law for intestate proceedings.

As you can imagine, dying without a will in New York can result in a very complex and involved administrative proceeding. Not to mention, the wishes of the decedent would not apply since there was no will. The best way to avoid placing your family into this situation is to take time to create a will with help from a New York State probate lawyer to ensure it is legal and valid.

Elderly woman with young woman reviewing a will

Furthermore, when you have a will, spousal inheritance rights are limited by the elective share requirement. You are free to decide how the remainder of your estate will be distributed to surviving heirs, pets, charities, and others.

For instance, if you wanted the bulk of your estate to be divided between your children, you would not have to worry about your spouse receiving $50,000 plus half of the remaining balance of the estate common with intestate proceedings.

Rather, your surviving spouse would receive their $50,000, and the remainder of your estate would be distributed to your children according to your wishes.

Whether you are a surviving spouse attempting to ensure you receive your elective share of the decedent’s estate or a surviving child who wants to protect your parent’s estate from their spouse, it is essential to seek legal advice from a qualified New York State probate lawyer.

For assistance and legal advice in matters relating to New York State marital inheritance laws, spousal inheritance rights, and New York State beneficiary laws in Jamaica, Queens, Brooklyn, New York City, and Manhattan, please feel free to contact Joseph A. Ledwidge, P.C. at 718-276-6656 today!

4 ways your last will and testament could be invalid

Drafting a last will and testament is not as simple as scribbling down a few notes on your deathbed and giving it to a trusted friend. In some cases, a handwritten “holographic will” like this could withstand a challenge in court, but an informal will is risky and ill-advised.

In fact, there are numerous ways that a will could be invalidated . It’s important to understand these potential will weaknesses so you can avoid having your will contested after you’re gone.

Problems with the way you signed the document

In most situations, you’ll want to have two different people present to “witness” your signing of the will. These people need to be non-beneficiaries. In other words, they will not be involved in any dispensation of the estate and they do not stand to benefit in any way from your will. Furthermore, they should not have a legitimate claim to inherit under state intestacy laws that would go into effect if no will were present.

The witnesses need to be present at the same time when you sign your will. They also need to sign the document while the others are watching.

Problems with testamentary capacity

You need to have “testamentary capacity” when you create and sign your will. To have testamentary capacity, you must understand (1) the value of your assets, (2) the people who will inherit your assets and (3) the effect of signing the will. If you are insane, temporarily insane, mentally incapacitated or suffering from dementia, at the time of signing your will, it could invalidate the document.

Problems related to undue influence

Imagine someone held a gun up to your head and said, sign this last will and testament in front of these two witnesses. Basically, you signed over all of your wealth to be inherited by the person holding the gun. This would be undue influence, and — so long as the influence becomes known — it would invalidate the will that you sign.

Problems related to fraudulent wills

A fraudulent will could be an entirely fabricated document. It could also be a document that other parties trick the testator into signing. One of the issues relating to a fraudulent will — or any potentially problematic will for that matter — is the fact that we cannot ask the testator what is correct because he or she is no longer here to answer questions.

Make sure you draft your will in a legally appropriate manner

Being careful with your will planning is essential. Don’t risk losing the legacy you leave behind because you made a simple mistake while planning you will. Learn about New York estate planning law and plan accordingly.

Your will matters: What happens if you die without a will?

Your will is the one document that can explain everything you want to see happen with your estate after you pass away. Anyone can die at any time, and that’s why so many people insist that it’s important to have a will early in life. When you don’t have a will, it’s harder to know what will happen to your assets and who will end up benefiting from them.

In cases where a father or mother married to one another passes away, there’s little contest as to who should receive the assets of the family home. In these cases, the surviving spouse often receives the entire estate, except for in the case that a child or children are from previous marriages or relationships. In those cases, the surviving spouse gets up to half the estate, and the rest is doled out to the children.

When you die without a will , your state laws dictate what happens to your estate. Do you want to see your family struggle to obtain the things that you purchased or collected over the years? If not, then a will is the answer for you.

States do recognize spouses, blood relatives and registered domestic partners, but there can be trouble in other situations. For instance, if you’ve lived with your partner for five years but never married or registered as domestic partners, your partner, a girlfriend or boyfriend by law, would not be entitled to anything from the estate except for items in his or her name or shared in both your names. Unmarried partners, charities and friends get nothing by law if you pass away without a will.

There are a few exceptions to the rule. For example, if you have taken out a life-insurance policy and named beneficiaries , then the beneficiaries will receive the payout regardless of whether or not you have a will. The same normally applies to a retirement account if you’ve already named a beneficiary. If you haven’t taken the time to name a beneficiary on these accounts and pass away, the assets become part of the estate and are shared with those recognized as heirs. If you have no potential heirs, then the estate goes to the state.

Your attorney can help you draw up a will, so you know your beneficiaries will receive what you want them to. You can always alter the will, but it is necessary to have one as soon as possible.

Source: Nov. 30, -0001

Executors, beneficiaries and writing a will

Adults in New York who do not have an estate plan may want to consider making one. Most people include a will in an estate plan. A will is a document that indicates how an individual wants their assets distributed after their death, and it must be signed by two witnesses. Without a will, the state will decide what happens to the assets.

The people or parties who receive the assets are beneficiaries. Beneficiaries might be friends, family or organizations. A will also needs an executor. This is the person who is in charge of distributing the assets and administering the estate in other ways such as paying taxes and debts. The executor might be a friend or family member, but an attorney or a financial professional may be an executor as well.

An individual may want to appoint a separate social media executor who is in charge of the individual’s online life. This person can be responsible for closing an individual’s online accounts and profiles and handling their email. A social media will may be written separately from the regular will.

Individuals should periodically review and update their wills. Families and friendships change due to births, marriages, divorces, deaths and other transitions, and over time, an individual may want to choose different beneficiaries.

An individual who is considering preparing an estate plan may want to work with an attorney in doing so. Wills may be challenged due to incorrect preparation or even legal language that is not used correctly. Individuals who have found themselves appointed executors of a loved one’s will may also want to consult an attorney. Sometimes, a person may be appointed executor while lacking the legal and financial knowledge they feel they need to manage the estate. This may particularly be the case if the estate is a complex one.

Source:, “Writing a Will,” Accessed April 21, 2015

Circumstances necessitating changes to a will or estate plan

New York residents who have prepared a will may know that a divorce, a remarriage or the death of a spouse will likely necessitate an evaluation of that document. In some circumstances, a will cannot be simply changed but must be completely revoked in order to be considered valid by a probate court.

A divorce is a circumstance that necessitates a complete revocation of a person’s will. In fact, a will’s provisions are instantly revoked following the divorce of the testator in many states including New York. Additionally, the ex-spouse’s name should be removed from a living trust, a living will and durable power of attorney documents, as well as life insurance policies, an IRA and pensions.

A marriage and the birth of children can be times for estate planning updates as well. It is very important that the new spouse be named in the will. Otherwise, New York courts will only allow the surviving spouse to inherit one-third of the assets with the remaining estate going to the children or the next closest family relations. Likewise, the will should appoint a guardian who will take care of minor children in the event both parents pass away.

A will should also be updated upon retirement or if the testator moves to another state. If the will does not comply with the particular state’s laws, it may be invalid. Keeping a will updated can help to ensure that beneficiaries are not burdened with complexities that may arise upon the distribution of the testator’s assets. A New York estate planning attorney can assist in the conduct of a periodic review of a client’s will and other important documents.

Source: Kiplinger , ” Good Reasons to Change Your Will “, December 22, 2014

Are holographic wills valid in New York?

In the state of New York, a holographic will may be considered valid only under certain circumstances. A holographic will is a will that is handwritten and not executed in accordance with state law. The holographic will is valid if created by a member of the armed services during actual military or naval service. It may also be valid if the testator accompanies an armed force during actual armed conflict.

Finally, the holographic will may be considered valid if it is created by a mariner while at sea. The will may be considered void if the holographic will is associated with a testator who has been out of the military for at least one year. The same is true for someone who created a holographic will while accompanying an armed force.

Holographic wills are valid for mariners at sea for three years from the time the will was created. If at any time the creator of a valid holographic will loses testamentary capacity, the will may be valid for one year after regaining such capacity. All holographic wills authorized under New York state statutes are subject to such provisions to the extent to which they could be applied consistently with their character.

An estate planning attorney may be able to help anyone who wishes to create a will. If a will is handwritten, the attorney can help create a typed or printed version with witnesses to its creation. Doing so increases the odds that it will be accepted when entered into probate upon the testator’s passing. Estate planning attorneys may also be beneficial for those who are considering trusts as a way to convey assets to beneficiaries.

Source:  FindLaw, ” N.Y. EPT. LAW § 3-2.2 : NY Code – Section 3-2.2: Nuncupative and holographic wills “, December 08, 2014

Requirements for New York wills to be properly executed

Wills in New York must meet several criteria before they are executed properly by a probate court. First and foremost, they must be in writing rather than in the form of oral testimony. A will must be signed by the one who wrote it or by a person in his or her presence and at his or her direction. A person who signs for the one who wrote the will does not count as a witness to the will execution .

At least two witnesses must be able to attest within a 30-day period that the one who wrote the will either signed it or directed another to sign it in his or her name. Their signatures and addresses must be affixed to the end of the will. The will must be signed in the presence of these witnesses, or the one who drafted the will must acknowledge the signature to each witness separately. Additionally, the drafter of the will must declare to each witness that the legal instrument is in fact his or her will.

Most of the formal requirements for execution and attestation of wills involve making sure that the will is indeed the will of its drafter. As such, these formal requirements do not need to be followed in any set order, but all necessary formalities must be observed within a satisfactory period of time.

For assistance in drafting a New York will as well as help with making sure all the formalities are properly adhered to, an estate planning lawyer may be able to help. Estate planning lawyers assist with numerous end-of-life financial decisions such as setting up trusts, managing tax concerns and drawing up a will to handle the transmission of one’s estate. They may also be able to assist with handling any probate court issues should they come up.

Source:  FindLaw, ” N.Y. EPT. LAW § 3-2.1 : NY Code – Section 3-2.1: Execution and attestation of wills; formal requirements “, November 16, 2014

Executing and attesting a will

In order to properly execute a will, residents in New York may need to understand more about the state requirements governing the process. Most wills are completed in writing, and most are executed and attested in similar fashion. The person whose name is on the will is referred to as the testator. The will must have the testator’s name, and signature included at the end in order to be approved. The document must be signed in front of witnesses who then attest to the event in order to be legitimized by the court system.

The testator’s signature is to appear at the end of the will. Nothing attached to the document below the signature can invalidate the agreed upon terms described in the body of the will. The only point of interest proceeding the testator’s signature is the attestation clause. Someone can sign for the testator in their presence and under their direction, but the person providing the assistance is required to include their own name and address on the document as well.

A will cannot be approved if the person signing the testator’s name does not provide his or her own signature as well. Forgetting to include their address, however, is permissible. The person signing for the testator does not qualify as a witness who can attest to the legitimacy of the document. State law requires at least two witnesses two attest to the testator’s signature and supply their own signatures and addresses in writing within a 30-day period.

People who need assistance writing a will or understanding more about the state requirements may benefit from consulting legal counsel. Lawyers may be able to perform a comprehensive review and evaluate of the testator’s estate, potentially minimizing the risk of adverse outcomes from arising for beneficiaries in the future.

Source:  Findlaw, ” NY Code – Section 3-2.1: Execution and attestation of wills; formal requirements – See more at: “, October 13, 2014

New York wills require specific elements

A will is a formal document that allows individuals to determine how their possessions will be distributed upon death. It requires very specific actions to be taken to prove the validity of its contents. Failure to meet those requirements may thwart the maker’s intentions.

New York requires a will to be signed by the person making it, or signed on his or her behalf by another at the individual’s direction. There must be two witnesses, who must personally attest to it and observe the signing. However, they may sign within 30 days of the original signature if the individual personally tells them that the signature is in fact his or hers. The witnesses may sign at different times, but both must sign within 30 days of the individual’s signature.

No agency reviews and approves wills, so any problems will not come to light until after the person’s death. The will is offered to the court for probate after the death of its maker. Before the estate is distributed, the court must be shown that the will is valid. If the will has only one witness, or if the witnesses signed at a later date than the individual and there is no evidence that the testator affirmed to the witnesses that it was in fact her signature on the will, then the will may not be accepted. If the will is determined to be invalid, then the estate will be distributed in accordance with intestacy laws, which may not comport with the wishes of the decedent.

While the concept of a will is simple, the requirements are strict. Working with an attorney is a suggested way to ensure that the estate owner’s wishes are carried out.

Source:  Findlaw, ” Section 3-2.1: Execution and attestation of wills; formal requirements “, October 08, 2014