What Is New York State Probate Law
New York State probate law, and the probate process, is set forth in the Surrogates Court Procedure Act and the Estates Powers and Trust Law . SCPA defines terms relating to probate sets forth the probate process, sets forth the procedure for commencing and maintaining probate proceedings and other related proceedings, lists the court fees that are to be paid in connection with certain proceedings, and sets forth rules governing the disposition of a decedents property.
Similarly,EPTL defines the duties and powers of a fiduciary of an estate. It also sets forth the requirements of due execution of a Will, of examining witnesses to a Will, of construing Wills, and of seeking Letters to administer an estate. EPTL also sets forth rules on Trusts.
Let Us Start Off With Examples Of Fees Set By Actual New York Estate Law Firms
Weve conducted a survey among New York estate lawyers to see how their firms set their fees. Without listing their names, the table below is a summary of what weve found:
| Law Firm | Rate Quoted Over the Phone |
|---|---|
| Law Firm 1: | |
| Flat fee depending on the size of the estate | |
| Law Firm 3: | |
| $10,000, + $450 per hour if the estate is contested | |
| Law Firm 5: | Depending on the size of the estate |
Weve had a potential client recently call and he told us that hes done extensive shopping around, calling different attorneys for his potential will contest case. We asked him what the prices are, and he said that the hourly fees range from $350 to $500 per hour, and the retainer agreements range from $1,000 to $4,000. Seems a little low to us, and he might have been trying to low-ball our firm, as his quote is about lower than the answers we got when we conducted our own survey.
As you can see, theres quite a range of amounts and arrangements. But it basically comes down to hourly or flat fee, or a combination thereof.
What Does One Do After A Will Is Admitted To Probate
Once the Will is admitted to probate, the Executor should collect all of the decedents assets, pay the decedents taxes , pay the decedents bills and other outstanding expenses, and then distribute the decedents assets in accordance with the decedents will. Please click here to review an Executors checklist.
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New York Simplified Procedures For Small Estates
Fortunately, New York does have simplified probate procedures for estates that fall under a certain value threshold. In New York full probate is necessary only when there are assets in excess of $30,000 and/or real estate is involved. Estates that are valued at less than $30,000 and have no real estate can take advantage of a simplified procedure.
Ways To Pass On Property Without Going Through Probate In New York
Each state offers different ways to legally transfer ownership of property after death without going through probate. It is vital that your estate plan is compliant with state laws, especially if it was created in another state. For example, New York does not allow transfer-on-death deeds for vehicles or real estate, so these assets will go through probate if your estate plan is not updated.
Common ways to hold or transfer property to avoid the New York probate process include:
Our attorneys can help you with all matters relating to estate planning, probate, and estate litigation. Contact us today through our online form to set up an initial consultation with our probate attorneys in Brooklyn.
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Wills Devising Real Estate
Between 1786 and 1829 the State Supreme Court and the county courts of common pleas shared with the Surrogates Courts the power to prove and record wills devising real estate . Between 1801 and 1829, the Supreme Court had exclusive power to prove and record wills devising real property located in several counties. The State Archives holds three small series:
J0041-85 Record of Wills Proved at Albany, 1799-1829. 0.3 cubic feet .
J2041-04 Record of Wills Proved at New York, 1787-1829. 1 microfilm roll.
J0020-82 Record of Wills Proved at Utica, 1818-1829. 0.2 cubic feet .
Petition The Court For Final Distribution And Acceptance Of Account
Once all the debts and expenses of the estate are paid you can now ask the court to approve your actions and your distribution plan. The probate court will hold a hearing on the petition for final distribution and account and then issues an order to discharge the remaining assets to the family members. As in the prior hearings, if family members all sign waivers and consent an official hearing and accounting can be waived. If anyone objects, then a formal hearing will be held and an official account will be required.
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Stages Of Estate Administration In New York
A probate estate administration consists of the following primary stages:
The first stage involves the personal representative compiling a list of all the decedents assets, having the assets appraised and then determining the total value of the estate. An inventory of the assets must be filed with the Court. Determining the assets is important for two reasons- to make sure there are enough assets to pay off creditors and to determine the total value of the estate and whether there are any estate taxes due. The attorney can assist with the preparation of any federal and New York estate tax returns that must be filed within the statutory prescribed period.
The second stage involves the personal representative reviewing and paying the decedents bills, creditors claims and other expenses. Typically an estate checking account is opened by the personal representative to pay estate expenses, including funeral expenses, attorneys fees, appraisers fees, creditors claims and the decedents personal household bills.
Neither the personal representative nor the beneficiaries are personally responsible for paying the decedents debts. The personal representative has the duty of determining whether assets need to be sold to pay bills, and which bills to pay, when there are not enough assets. Many times the personal representative will discuss these decisions with the beneficiaries to avoid any disputes later on.
How Long Can An Estate Stay In Probate
If the estate is straightforward , the probate process should only take about three to six months.
However, if the estate is more complicated, it can take years before the decedents will is probated. For example, if a will is contested and the parties refuse to settle the matter, the parties will usually litigate the matter. Estate litigation can take years to resolve.
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What Happens If Your Loved One Dies Without A Will
First of all, youre not alone. In fact, the majority of probate cases do not have a will. We can help you through this process!
When your loved one dies without a will, or if the will is deemed invalid by the court, you, or the intended legal representative, must open an estate and complete probate, the process of court-supervised distribution of the assets of the deceased. The process the court uses when there is no will is called intestate succession, which simply translates to “no will estate.”
Stage : Appointing An Executor
The first stage is appointing an executor. The Executor is the court-appointed, legal representative of the estate.
The Executor receives a certificate from the court called Letters Testamentary. This is his proof to the rest of world that he has the legal right to do things for the estate.
Let me give you an example of how letters work: Imagine someone walks into a bank and says my dad passed away, Im here to close his account and collect the money.
How is the bank supposed to know if this person is actually a child? Or if there was a will that disinherited him? Or if there are other siblings or a spouse who are also entitled?
When an Executor shows his court-certified Letters, the bank can release funds to him with confidence, because the Executor has shown his proof of legal authority. The same applies for real estate, insurance, pensions, and so on.
How long does this Stage take? In the simplest of cases, getting an executor appointed can be as quick as 2 month. On average Id say 3-4 months.
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Probate Checklist For Executors And Administrators In New York
If youve been designated and appointed as the executor or administrator for an estate that is being settled through probate proceedings in New York, you may find yourself unsure about how to proceed. That is only natural, since most people rarely have contact with the probate court. Still, it is important to have at least some basic idea about the duties that lie ahead, to ensure that you dont make errors that could leave you liable for any estate losses. To help you better manage the complexities of the probate process, weve prepared this probate checklist that can be used as a broad guide as you work to fulfill your probate duties.
Inactive Bank Accounts/unclaimed Funds
In certain cases, legal heirs may believe that they are entitled to unclaimed funds or inactive accounts belonging to decedents. Banks, insurance companies, utilities, investment companies and many other businesses are required by state law to surrender inactive accounts to the state. The State Comptroller serves as custodian of this money until it is claimed. The State of New York never takes ownership of the money, and if you can prove you are entitled to it, it will be returned to you without charge. To search the Office of State Comptrollers online database for information about unclaimed funds, go to and click on Unclaimed Funds.
For further information regarding probate records in New York State and a complete description of available records and indexes, see New York State Archives Information Leaflet # 3, Probate Records in the New York State Archives. A single copy of the leaflet is available at no charge via U.S. Mail. If you have specific questions, see Probate Research Assistance Provided by the New York State Archives.
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Stage : Closing The Estate
The last stage is closing the estate and sending inheritance checks to the heirs. The Executor has to prepare an Accounting. This is a court-ledger of every dollar that went in and out of the estate. The Executor sends this Accounting to all the heirs, and anyone else who has a stake in the estate.
For Heirs, this is your chance to review exactly how the Executor handled the estate. If you have any problems or questions, now is the time to say something.
Once everyone agrees with the Accounting, then all the Heirs sign off by signing Receipts and Releases forms that essentially says: Im OK with the Executors work, I accept my calculated share, And I wont sue the Executor later, After the Executor submits all signed forms with the court, he can send out checks to the Heirs.
This closing stage typically takes 1-3 months, but it really varies a lot. Some heirs want their inheritance as soon as possible. And other have lots of questions, it just depends.
So start to finish, the entire probate process typically takes a bit over 1 year. But again, it varies case by case and can take several years if theres conflict or other complications.
If youd like to learn more, Ill be happy to try and answer your questions.
If you havent already, you can start by calling me or sending me your contact info using the form below. One of my paralegals will call you back, so you can tell us your story.
Then, Ill be able to send you some information that matches your situation.
Submit A Petition For Probate And Other Relevant Documents
Fill out the Petition for Probate form entirely, along with all other relevant documents, and submit the paperwork to the court. Pay the filing fee. Once you file the probate package, the court sets an initial hearing date. If you receive any notices from the court before the hearing, comply with all requests and procedures.
The probate process can differ depending on the size and complexity of the estate. Ensure you’re following all the above steps and are in compliance with New York’s state laws so that the process can run as smoothly as possible. Inventorying the estate’s assets is a particularly tough job for the larger estates, so in some cases, an appraiser is hired to help with the estimates. Note that some assets cannot be involved because a will does not determine what happens to those assets, such as IRAs and life insurance. If you were hoping to be the beneficiary of a non-probate asset that cannot be determined by the will, it should have their its designation for what occurs upon the death of its owner.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.
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Federal Taxes And Probate
Federal taxes are not directly related to probate. Anything in the probate estate is subject to federal estate tax, as are joint accounts, life insurance, and other things. When the executor files the federal tax return, they must include a copy of the will that has been admitted to probate to show how the property is to be distributed. That can affect the tax, if money is to be distributed to the surviving spouse that is not subject to estate tax, whereas, everything else may be.
Comparing The Fee Arrangements
Hourly vs. Contingency: The advantage of an hourly case over a contingency case is that the client keeps the entire share of the estate that they are entitled to, paying only hourly probate lawyer fees. Lets say youre fighting for a $1 million share of an estate. If you win, it would have been worth it to pay probate lawyer fees in the amount of $50K, as opposed to giving the attorney 1/3 of the $1 million. But if you lose and get nothing from the case, you would have been better off with a contingency, paying a probate lawyer fee of $0, as opposed to paying them $50K. If you didnt have $50K in the first place, the contingency arrangement might have been your only option anyway.
Hourly vs. Flat Fee: An hourly case will typically be more cost-effective than a flat fee that is more than $15K. A lawyer who knows what theyre doing is not going to charge a very small contingency fee and accept the chance that something will go south and they will need to perform more work. At a minimum, the attorney will have a clause in the retainer agreement that any extra work will be charged by the hour, which is not a real flat fee.
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Create An Accounting Of The Estate
Now that you have the authority from the court, you will be able to demand information from institutions, open safety deposit banks, ask for tax returns from the IRS and order credit reports to determine the assets and debts.
Within three months of your appointment as a personal representative, you will need to provide an inventory of the estate to the court.
Court Suspended Administrators Due To Wasting Assets In Re Steward 2021 Ny Slip Op 2395
The administrator of an estate is a fiduciary. As such, they are held to a high standard of conduct. They must perform their responsibilities with care and make the interests of the estate a top priority. They must be trustworthy and must not self-deal. If an administrator violates their duty of care, their actions can be challenged in court. If the court concludes that the administrator was in breach of their fiduciary duty, potential consequences include reversal of the problematic transaction, suspension, or removal.
In In re Seward, on April 2, 2001, the decedents will was admitted to probate and letters of administration were issued appointing co-administrators. Nearly 20 years later, in September 2018, a petition was filed to revoke the letters of administration, to suspend the administrators as fiduciaries, and to appoint a new administrator. The petitioners alleged that the administrators had allowed the estate to languish for nearly 20 years. Further, the petition alleged that one of the administrators was acting against the interests of the estate.
New York law provides that the Surrogates Court can suspend or revoke letters issued to an estate administrator or other fiduciary. Reasons for suspending or revoking letters include evidence that the fiduciary wasted or misapplied assets, damaged estate property, removed property without approval, or failed to follow an order of the court. SCPA 711
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Proof Of Validity Of Last Will & Testament
- The main point of the probate proceeding is to prove the validity of the willthat it is, in fact, the decedents will, that it was properly executed, and that the decedent had the capacity to execute a will. These elements must be proven by the person putting forth the will for probatethe petitioner. Proving the will can be accomplished by examining the witnesses to the will under oath. However, this examination is often dispensed with where the testator and witnesses executed a Self-Proving Affidavit. This document contains a sworn statement attesting to the wills validity. If no self-proving affidavit exists, the petitioner may seek to obtain a similar affidavit from the witnesses, after the date of death, which may also allow the examination to be dispensed with.