New York Probate and Administration of Estates

New York Surrogate’s Court determines the distribution of assets of a deceased person.

The deceased is called the decedent. The personal and real property of the decedent is called the estate. If the decedent left a Will then he died testate and the Will is submitted to probate. If the decedent died without a Will then the proceeding used to determine the distribution of his property is called administration. The Surrogate’s Court judge is called the Surrogate.

Type of Estate Proceedings

New York estate cases may fall under one of three types of proceedings:

Assets Less Than $30,000 – If the decedent had personal property values less than $30,000 then the estate is subject to a small estate proceeding called a voluntary administration.
Probate – If the decedent had a Will then the Will is subject to a probate proceeding.
Administration – If the decedent died without a Will then his assets are subject to an administration proceeding.

What is probate?

Probate is the legal proving that the Will is valid. When a person dies with a Will the Will must be filed with the Surrogates Court of the County where the decedent resided. The Will must be admitted to probate by the court. The Surrogate’s court judge must be convinced that the Will is authentic and valid to be admitted to probate pursuant to Surrogate’s Court Procedures Act (“SCPA”) §1408 and EPTL § 3-2.1. Upon admitting the Will to probate the Executor named in the Will, if he or she qualifies, is appointed to distribute the assets of the estate and fulfil the wishes of the deceased and pay the taxes, bills and expenses of the estate.

Bronx, New York probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding. If you need help filing for probate or objecting to the probate of a Will call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.

How do you get a copy of the decedent’s New York death certificate?

If the decedent lived in either the Bronx, Manhattan, Brooklyn, Queens or Staten Island you can obtain a copy of her death certificate at the New York City Department of Health and Mental Hygiene Office of Vital Records. If the person died outside of New York City you can obtain a death certificate from New York State Department of Health by telephone, mail or internet.

The following person may request a copy of the death certificate:

– Spouse;

– Domestic partner;

– Parent;

– Child;

– Sibling;

– Grandparent;

– Grandchild;

– Informant listed on the certificate;

– The person in control of disposition;

– Niece/Nephew;

– Aunt/Uncle;

– Great grandchild and a great-great-grandchild; and

– Grandniece/Grandnephew.

What happens if the decedent’s Will cannot be found?

New York Surrogate’s Court Procedures Act § 2307, provides that a lost will is presumed to be revoked or destroyed. However, according to SCPA §1407, a lost or destroyed will be admitted to probate only if:

1. It is established that the will has not been revoked; and

2. Execution of the will is proved in the manner required for the probate of an existing will; and

3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will that is proved to be true and complete.

What can you do if the decedent’s Will is in a safe deposit box?

A Will search petition may be filed with the Surrogate’s Court to issue an ex parte order directing that the safe deposit box is opened, and an inventory of the items taken. The court will order that the Will be sent to the court by personal delivery or by registered mail. See SCPA § 2003; 20 NYCRR § 360.2).

What can you do if someone is withholding production of the Will?

New York Surrogate’s Court Procedures Act § 1401 provides that if “there is reasonable ground to believe that any person has knowledge of the whereabouts or destruction of a will of a decedent the court may make an order requiring the person” to produce the Will. It is a felony to conceal, mutilate or destroy a Will in New York. See NY Penal Law § 190.30.

What documents are required to file for probate in New York?

A petition, the original Will, a certified death certificate and the paid funeral bill must be filed with the Surrogates Court.

What is the purpose of an attesting witness affidavit?

The affidavit of the attesting witnesses stating that the decedent was of sound and disposing of mind, memory and understanding and was not under any restraint or in any respect incompetent establishes the petitioner’s burden of establishing the decedent’s testamentary capacity. See In re Will of Schlaeger, 74 AD3d 405 (1st Dept 2010).

Who cannot serve as an executor in New York?

New York probate law provides that all persons are able to qualify as executor, except for infants, incompetents, non-domiciliary alien (other than a foreign guardian under SCPA § 1716(4) or one who serves with multiple fiduciaries at least one of whom is a New York resident), felon, someone who has a history of substance abuse, dishonesty, improvidence, want of understanding or otherwise unfit for office or someone who cannot read and write English. See SCPA § 707).

Your executor is the person who will be responsible for administering your estate through the complexities of the probate process. Therefore, you want a person who is financially responsible, stable, and trustworthy. Sometimes the best person for this most important function is your attorney. Your executor will be responsible for collecting the assets of the estate, protecting the estate property, preparing an inventory of assets, paying valid claims against the estate, representing the estate in claims against others, and, distributing the assets of the estate to the beneficiaries.

What are the powers of an executor a New York Will?

New York Estate Power and Trust Law “EPTL” 11-1.1 provides that the power of the executor includes but is not limited to:

(1) Gather assets of the estate;

(2) To invest and reinvest the property of the estate;

(3) To effect and keep in force fire, rent, title, liability, casualty or other insurance to protect the property of the estate or trust and to protect the fiduciary;

(4) To take possession of, lease, collect the rents from and manage, mortgage and sell real property;

(5) To employ any bank;

(6) To contest, compromise or otherwise settle any claim in favor of the estate; and

(7) To pay taxes, all other reasonable and proper expenses of administration from the property of the estate, including the reasonable expense of obtaining and continuing his bond and any reasonable counsel fees he may necessarily incur.

Can a New York executor face liability for estate losses incurred during the period after the decedent’s death and before the issuance of letters testamentary?

A New York executor can face liability for estate losses incurred during the period after the decedent’s death but before the issuance of letters testamentary. Courts have held that the authority of an executor is derived from the will, not from the letters issued by the Surrogate. See Matter of Yarm, 119 AD2d 754 (2d Dept 1986) citing In re Horowitz Will, 297 NY 252 (1948). An executor has a duty to preserve the estate assets such as stocks and bond to ensure that they are protected for the beneficiaries.

Bronx, New York probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding. Needless delay in filing for probate may expose estate assets such as stocks and bonds to market forces resulting in losses to the estate. Please call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 to file for probate and preserve the assets of the estate.

Who may file an objection to the probate of a Will?

New York probate law provides that an objection to the probate of a Will may be filed by any person who is adversely affected by the probating of the Will. See SCPA §1410; and 22 NYCRR §207.26. An interested party as defined in SCPA §103(39) may object to the nominated fiduciary by filing objections. See SCPA § 709.

If you need help filing for probate or objecting to the probate of a Will then call Bronx probate lawyer Bryan J. Hutchinson at (718) 671-0900.

What grounds do you need to object to a will?

A distributee or adversely affected person may object to the probate of a for the following reasons:

Forgery;
Fraud;
Duress or undue influence;
Lack of capacity of the testator;
Lack of proper formalities in the execution of the Will; and
Later executed Will.

If you need help filing for probate or objecting to the probate of a Will then call experienced Bronx probate lawyer Bryan J. Hutchinson at (718) 671-0900 to guide you through the probate process and protect your rights to the assets you deserve.

How does the court determine if a Will is valid?

New York Surrogate’s Court will look at various things including the following items to determine if a Will is valid:

Did the testator (decedent) have testamentary capacity?
Was there undue influence on the decedent?
Was there fraud in the drafting of the Will?

What does testamentary capacity means in a probate proceeding?

It has been said that “[t]he law jealously guards the right of a person to dispose of his property by will, whatever his condition of health may be, but there comes a time when the ordinary death-bed will, prepared when the testator is sinking slowly but surely to his end, must be submitted to careful scrutiny to determine whether it indeed meets the tests of testamentary capacity.” See In re Delmar’s Will, 243 NY 7, 10-11 (1926).

In order to prove the testamentary capacity of the decedent, the petitioner must demonstrate that decedent “understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of his bounty and his relationship to them.” See Matter of Prevratil, 121 AD3d 137, 140 (2014). Testamentary capacity concerns a person’s mental condition only at the time of the execution of the Will.

The testator need only have a general knowledge of his assets. The testator does not need to have a precise knowledge of all his assets. See Matter of Walker, 80 AD3d 865 (3d Dept 2011).

If you need help filing for probate or objecting to the probate of a Will then call experienced Bronx probate lawyer Bryan J. Hutchinson (718) 671-0900 to to guide you through the process and protect your rights to the assets you deserve.

What does undue influence over the testator (decedent) mean?

Undue influence is said to occur when a beneficiary overcomes the free will of a testator

and imposes her own will to procure a particular testamentary outcome. The influence exercised

must amount to moral coercion which caused the testator to act against his free will and desire for which he was too weak to resist.

To prosecute an undue influence claim, an objection must prove by a preponderance of the evidence:

(i) A motive to influence the testator;

(ii) Opportunity to influence the testator; and

(iii) The actual exercise of undue influence.

See Matter of Greenwald, 47 AD3d 1036, 1037 (2008); Matter of Malone, 46 AD3d 975, 977 (2007).

If you need help proving or defending a claim of undue influence or fraud in the probate of a then Will call experienced Bronx probate lawyer Bryan J. Hutchinson at (718) 671-0900 to fight for your rights and get your fair share of assets you deserve.

How do you prove that a Will was fraudulently executed?

In order to prove that a Will was fraudulently executed, the person objecting to the will be admitted to probate must prove that, one knowingly made a false statement to the testator which caused him to execute a will that disposed of his property in a manner differently than he would have in the absence of that statement.

Bronx probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.

If you need help proving or defending a claim of undue influence or fraud in the probate of a Will then call experienced Bronx probate lawyer Bryan J. Hutchinson at (718) 671-0900 to fight for your rights and get your fair share of assets you deserve.

What is an SCPA § 1404 hearing?

At a New York Surrogate’s Court Procedures Act “SCPA § 1404” hearing testimony will generally take off the attorney who drafted the will, supervised its execution, together with the depositions of the subscribing witnesses, to determine if the will is consistent with the decedent’s intentions and that the will was read and reviewed by the testator.

SCPA § 1404 estate litigation is a serious matter with major consequences and should not be taken lightly. To determine if there are enough grounds to object to the probate of a Will an SCPA § 1404 examination may be necessary to determine the validity of the Will. An SCPA § 1404 examination is conducted similar to a deposition and allows a party to examine the following persons before or after the filing of an objection:

The draftsperson of the Will;
The attesting witnesses of the Will execution;
if the Will contains a provision designed to prevent a disposition or distribution from taking effect in case the Will, or any part thereof, is contested, the nominated executors in the Will and the proponents; or
any person whose examination the court determines may provide information with respect to the validity of the Will that is of substantial importance or relevance to a decision to file objections to the Will.

Given the serious financial consequences that flow from a will contest, you must get a knowledgeable and experienced attorney to conduct the SCPA § 1404 examination.

Bronx probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding. If you need help conducting or defending an SCPA § 1404 examination then call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 to protect your rights.

Who has the burden of proving compliance with the due execution requirement of EPTL § 3-2.1?

The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformity with the statutory requirements. See EPTL §3-2.1 (a); Matter of Collins, 60 NY2d 466 (1983); Matter of Rosen, 291 AD2d 562 (2nd Dept 2002).

Can an New York attorney be named an executor of a client’s Will?

New York Surrogates Court Procedures Act allows an attorney to be named an executor of a client’s Will. See SCPA 2307-a. Your executor is the person who will be responsible for administering your estate through the complexities of the probate process. Therefore, you want a person who is financially responsible, stable, and trustworthy. Sometimes the best person for this most important function is your attorney. Your executor will be responsible for collecting the assets of the estate, protecting the estate property, preparing an inventory of assets, paying valid claims against the estate, representing the estate in claims against others, and, distributing the assets of the estate to the beneficiaries.

Bronx probate lawyer will help you gather and protect assets of the estate and distribute the assets to estate beneficiaries. Call Bronx probate lawyer Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

What is considered the decedent’s estate?

In New York the decedents estate means all of the property of a deceased person, trust, absentee, internee or person for whom a guardian has been appointed as originally constituted, and like it from time to time exists during administration. See SCPA 103(13). EPTL §1-2.63 defines estate as “(a) [t]he interest which a person has in the property. (b) The aggregate of property which a person owns.”

What can I do to force the executor to distribute estate assets?

New York Surrogates Court Procedures Act provides that if the executor is unjustifiably delaying distribution of the assets, a beneficiary can bring a proceeding under SCPA § 2102(4) to require the executor to pay the legacy or distribute share.

Our Bronx probate lawyer Bryan J. Hutchinson will fight to get your fair share and the timely distribution of property you deserve. Call (718) 671-0900 for a confidential consultation.

What can I do if my spouse disinherited me from his or her Will?

New York law provides a surviving spouse with a “Right of Election” to take the greater of $50,000 or one-third of the net share of the deceased spouse’s estate. The Right of Election must be exercised within six months from the date of letters of testamentary were issued to the executor. It must be filed no later than two years after the date of death.

Our Bronx probate lawyer Bryan J. Hutchinson will fight to get your elective share of property you deserve. Call (718) 671-0900 for a confidential consultation.

How much time does the executor have to bring a wrongful death action in New York?

An executor must file a wrongful death within two years of the decedent’s death. See EPTL §5-4.1.

Bronx probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding, medical malpractice and personal injury actions. If your loved one has been the victim of medical malpractice or wrongful death the law limits the time to bring an action. Call the Law Office of Bryan J. Hutchinson, PLLC now at (718) 671-0900 to protect your rights.

What is a New York Surrogate's court citation?

A Citation is a formal name for a notice that must be served on the distributees of an estate. The Citation tells the distributees that the executor has filed a petition to obtain authority over the property of the estate. The Surrogate’s Court obtains jurisdiction over the distributes once the Citation is served on them.

What is an Administration proceeding in New York?

When a person dies without a will the person’s assets are distributed based on New York States law of intestacy by an administration proceeding. See SCPA §103(28).

Bronx probate lawyer Bryan J. Hutchinson will guide you through the complexities of the administration process in gathering all the assets of the estate, paying expenses such as taxes, paying claims and distributing assets to rightful heirs at law. Call Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

Bronx probate lawyer Bryan J. Hutchinson, represent clients in all aspects of probate and administration proceedings including but not limited to preparing and filing the petition, will contest, accounting proceedings in the Surrogate’s Court in the Bronx, Queens, Brooklyn, Manhattan and Westchester Counties.

Who may file a petition to serve as administrator of an estate in New York?

Any person interested in the estate of an interstate or any person to whose appointment as administrator all distributees consent pursuant to 1001 or a public administrator, the chief fiscal officer of the county, creditor or a person interested in an action brought or about to be brought in which the intestate, if living, would be a proper party may present a petition to the court for a decree granting letters of administration to him or to another person.

What is the order of priority for granting letters of administration in New York?

New York Surrogate’s Procedures Act § 1001(1) in part provides that “Letters of administration must be granted to the persons who are distributees of interstate and who are eligible and qualify, in the following order:

(a) the surviving spouse,

(b) the children,

(d) the father or mother,

(e) the brothers or sisters . . .”

See SCPA §1001(1)

Letters of administration may also be granted to:

(a) to the public administrator, or the chief fiscal officer of the county, or

(b) to the petitioner, in the discretion of the court, or

See SCPA §1001(8)

Who must be served with process in a New York administration proceeding?

In a proceeding for letters of administration process shall issue to all presumptive distributees of the decedent. See SCPA § 1003(1).

What happens if you cannot find a person entitled to process, or there where about is unknown?

The court may dispense with service of process upon a person who has a right to administration prior or equal to that of the petitioner where it appears that the name or whereabouts of such person is unknown and cannot be ascertained after diligent inquiry. See SCPA § 1003(4)

How is the property of a person who dies without a Will distributed in New York?

Under the New York State Estates, Powers and Trusts Law (“EPTL”), the property of an individual who died without a will should be distributed among the spouse and surviving issue. See NY EPTL § 4-1.1(a)(1).

What does “issue” means in under the New York State Estates, Powers and Trusts Law?

The issue is defined as “descendants in any degree from a common ancestor.” See EPTL § 1-2.10.

Can a non-marital child inherit from his father in New York?

Under EPTL 4-1.2, a non-marital child “is the legitimate child of his father so that he and his issue inherit from his father and his maternal kindred.” A marriage ends at the death of a spouse. See Hunt v Hunt, 75 Misc. 209, 211 (Sup. Ct. Kings Cty. 1912), modified, 154 AD 833 (NY App. Div. 1913).

Bronx probate and administration lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.

If you are a non-marital child seeking help in protecting your right to inherit from your father’s estate call our Bronx probate and administration lawyer Bryan J. Hutchinson at (718) 671-0900 for a confidential consultation.

How does a non-marital child inherit from his father in New York?

A non-marital child may be eligible to inherit from his or her parent if:

(1) order of filiation was properly executed and filed during the father’s lifetime;

(2) the father has signed an instrument acknowledging paternity that meets certain conditions;

or (3) “paternity has been established by clear and convincing evidence,” such as by a genetic marker test or “evidence that the father openly and notoriously acknowledged the child as his own.” See EPTL § 4-1.2(a)(2)(C).

How are assets distributed if the decedent is survived by a spouse and issue?

Under New York EPTL §4-1.1(a)(1), if a decedent is survived by a spouse and issue, the spouse inherits the first $50,000 plus 50% of the balance of the decedent’s estate and the issue inherits the remaining 50% of the balance of the decedent’s estate.

Must the administrator of an estate be bonded?

Generally, the administrator of an estate must be bonded. See SCPA §805

How do you remove New York SCPA § 805(3) bond restrictions imposed upon you as a New York City estate administrator to permit the sale or transfer of real property of the estate?

The Surrogate’s Court generally places an SCPA § 805 (3) restriction on the sale or transfer of real property of the estate. The Law Office of Bryan J. Hutchinson, PLLC is experienced in helping our clients lift the SCPA § 805 (3) restriction by preparing a petition to lift the restriction, obtaining consent from all distributees, preparing a proposed decree, preparing New York State Department of Taxation and Finance Form ET-30, Application for Release of Estate Tax Lien and ET-117 Form, Release of Estate Tax Lien and preparing a New York Citation to issue to all distributees who have not consent to the sale or transfer.

If you are the administrator of an estate, it is important that you hire an attorney to properly obtain a release of liens because you may be held personally liable for unpaid estate tax up to the value of the assets that were distributed before the NYS estate tax was paid in full.

If you need help filing for letters of administration or protecting your rights of inheritance call Bronx probate and administration Bryan J. Hutchinson, PLLC now at (718) 671-0900.

What happens if a minor child inherits from the parent?

The Court will appoint a guardian of the property of the infant, who can be the surviving parent. If there are no surviving parents and upon the person of the infant. See SCPA §§ 1702, 1703 and 1704.

Bronx, New York probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding. If you need help filing for letters of administration or protecting your rights of inheritance call the Law Office of Bryan J. Hutchinson, PLLC now at (718) 671-0900.