New York Probate, Trust, & Estates Law FAQ

If you face the probate process in New York, you probably have many questions about the legal issues. On this page we provide general information and answers to frequently asked questions. For answers to questions about your specific case, consult with an experienced New York probate law lawyer.

Q: How long does the probate process take?

A: Anywhere from a couple of months to years, depending on the issues of your particular case. Factors that affect the length of the probate process include the amount of assets, whether or not there is a valid will and whether anyone is contesting the will.

Q: How much does probate cost?

A: Again, the answer depends on the complexity of the estate and whether or not there are disputes involved. Our law firm provides reasonable rates and flexible payment options to help clients manage the costs of the probate process.

Q: Do I need an attorney for the probate process?

A: There is no law stating you need an attorney, but if the estate has significant assets and potential legal issues, you are better served by retaining your own counsel. If you are a beneficiary, you need to make sure you obtain your fair share of the estate. If you are an estate executor or administrator, an experienced lawyer can help you avoid costly personal liabilities.

Q: What if my family member passed away without a will?

A: Estate administration is the process of settling the financial affairs of someone who died without a will, legally referred to as intestate. In the estate administration process, assets are distributed according to New York laws of intestacy.

Q: Can I have the executor removed?

A: If you suspect the executor is not fulfilling his or her fiduciary duties, you can file a petition to compel an accounting by the executor. This will require the executor to produce a full accounting of his or her activities, including all transactions involving estate assets.

Q: What if a child is born after their parent executes their will? 

The answer to this question is not exactly straightforward. Under the NY estate law a parent is under no obligation to leave a child any portion of their estate. A parent may completely disinherit their children within the NY probate law. However, there is a provision in NY estate law for a child born after their parent drafts a will. These children, referred to as “afterborn children,” can inherit their intestate share of their parent’s estate. There is a legal presumption under New York State law that the parent’s will was not drafted in contemplation of the afterborn child’s birth, and as a result, the afterborn child was unintentionally excluded from their parent’s estate. However, in order for an afterborn child to inherit, there must be provisions for any other children born in their parent’s NY will prior to the will’s execution. Otherwise, the afterborn child is precluded from inheriting their parent’s estate. For example, if Mary has two children, Jack and Jill, and she does not provide for either in her will, any child born to Mary after the will is executed will be disinherited despite the afterborn child provision in the law.  

To date only one exception exists to the afterborn children provision, in the case Matter of Gilmore. In that case, the NY Surrogate’s court determined that if a child born prior to the execution of a will is excluded from the will but later adopted into the family, that child may step up to inherit as an afterborn child. The rationale for this sole exception being that while the child was born prior to the will’s execution and therefore was not an afterborn child, the parent adopted the child into the family. As a result, the adoption substitutes as the date from which the child was conceived. 

Q: My father passed away three months ago. He had no will. However, he left quite a few assets such as a house, car, and some valuable jewelry. How should these items be divided amongst me and my two sisters?

When a person dies without leaving a Last Will and Testament, that person’s property is distributed according to the law. This law is called intestacy law. In New York, that law is found in EPTL 4-1.1. This process begins by determining who is in the family. If there is a spouse and no children, the spouse receives 100 percent of the estate. If there is a spouse and children, the spouse receives $50,000 plus half of the balance of the estate. The children inherit everything else. If one of the children is deceased and they had children, those children take their deceased parent’s share. When there are just children and no spouse, the children share the estate equally. So if your father had no spouse, you and your sisters would get an equal portion of your father’s estate. If you and your siblings are not able to agree on which personal items to take, the court will order the items sold and the proceeds will be divided amongst the distributees of the estate.  

Example: Bruce is married to Kristine and they have three daughters. Bruce owns a house in joint tenancy with Kristine plus $300,000 in cars and jewelry. When Bruce dies, Kristine inherits the house outright and $200,000 worth of Bruce’s property—that is, $50,000 plus $150,000 worth of the balance. Bruce’s three daughters inherits the remaining $150,000 share of Bruce’s property.

Q: What happens if you die without a will and without any family?

If you die without a will and don’t have any family, your property will “escheat” into the State of New York. This is a very rare occasion, however, because most people have some type of family and the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave grandchildren, great grandchildren, parents, grandparents, siblings, nieces, nephews, great nieces or nephews, aunts, uncles, or cousins.

Q: What is a trust? What are the different types of trusts in estate planning?  

A trust is an arrangement where someone (the trustee) controls property for the benefit of another person (the beneficiary). A trust is a private document (unlike a will) that does not get filed in probate court, which could be a time-consuming and costly process.

Contact A New York City Probate and Trust Attorney

If you have questions about the probate process in New York, we are here for you. Reach us online or by telephone at 718.276.6656 to arrange a consultation with a knowledgeable probate litigation lawyer.

We represent individuals and families around Queens, Brooklyn, Manhattan, and all across New York City.