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.

Spouses’ inheritance rights in New York

New York residents who have survived their spouses often have questions about their rights to inherit part of their spouses’ estates. Although New York is a common law state, a surviving spouse still has rights that entitle them to part of their deceased spouse’s estate.

Because of the rules of property ownership in New York, the spouse of a deceased person is not necessarily entitled to half of that person’s estate. The person whose name is on the title of a piece of property is its legal owner, even if that person’s spouse actually paid for it. For property that is not associated with a title, the person who paid for the item is its owner. This means that each spouse in a marriage does not necessarily own half of the property acquired during the marriage.

Although it is a common law state, New York law disallows people from completely excluding their spouses from their wills. Residents of New York are entitled to one-third of their deceased spouses’ estates. This mandate is even applicable in cases where a deceased person left less than one-third of their estate to their spouse. A spouse who was excluded from a will or who received less than one-third of the estate may take the case to court to claim their share. If the spouse does not make a claim with the court or if they consented in writing to receive less than one-third of the estate, the deceased person’s property will be distributed as indicated in their will.

People whose spouses are deceased often have difficulty maintaining their standard of living without their full share of their spouses’ estates. Attorneys may be able to advise surviving spouses on how to make a claim to an estate even if their spouse excluded them from their wills.

Source: FindLaw, “Inheritance Law and Your Rights” , accessed on Feb. 16, 2015