Probate or Administration: In New York, if the decedent had a Will and had assets that did not pass by operation of law (such as joint property with rights of survivorship or accounts with beneficiary designations), then the Will must be “probated” and an Executor must be appointed. If the decedent did not have a Will and had assets that did not pass by operation by law, then an Administrator must be appointed.

Who can file a Petition: In order to bring a petition of Probate or Administration to court, you must have standing. If the decedent had a Will, then the nominated Executor will be the one filing the petition. If there is no Will, then SCPA 1001 determines who has priority in becoming the Administrator of the Estate. The priority is usually given to the spouse, then to adult children of the decedent, although special circumstances may require a change in this order.

What Needs to be Included in the Petition: The petitioner has to fill out the petition in Surrogate’s Court (either probate or administration). The petition includes decedent’s information, list of known assets owned by decedent at death, all beneficiaries of the Will, all beneficiaries under the rules of intestacy, information about minor and/or incompetent beneficiaries, and any other special circumstances. The petitioner must also provide a Death Certificate, collect all necessary waivers and consents from beneficiaries, and may have to create a citation. The petitioner must also pay a filing fee, the amount of which depends on the size of the estate. All this information must be filed in the County in which  the Decedent resided at death.

Timing: This Surrogate Court process of gathering the information, obtaining necessary waivers, getting the court to issue a citation for non-consenting heirs, getting the information reviewed by the court, and dealing with additional complications (e.g. the court is likely to appoint a Guardian ad Litem for a minor or legally incapacitated beneficiary) can take months or sometimes years. If you need to deal with issues immediately (such as preventing foreclosure), you may want to apply for Preliminary Letters.

Getting Paid: Once an Executor or Administrator gets appointed, at the end of the probate process they are entitled to remuneration for their services. The fee is determined based on a schedule set forth in SCPA 2307, and the Executor’s commission is calculated based on the amount of property that is received and distributed by the Executor.

Please contact Sverdlov Law PLLC at 212-709-8112 or if you want to know more about the specifics of estate administration.