New York State Probate Process:
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When an individual domiciled in New York State (or owning real estate in New York State) dies his or her last will and testament must be probated in order for the decedent’s assets and property to be distributed to the beneficiaries. The executor of the will must be appointed to act by Surrogate’s Court before any assets are liquidated and distributed. The New York State probate process usually takes seven to ten months to administer an estate, assuming that no issues arise. Below is a general timeline of the general probate process in New York State:
1. I found the will of the decedent and I am appointed executor, now what?
The testator (the person who executed the will) names the executor of his or her estate in the will. The executor files the original will with Surrogate’s Court and will have to locate the closest living relatives of the testator and any other beneficiaries under the will. The executor then petitions to Surrogate’s Court to be appointed executor. The executor must obtain jurisdiction over the beneficiaries and the close relatives of the testator in order for him or her to be appointed the executor by Surrogate’s Court. Jurisdiction is obtained by obtaining consent to probate the will from the closest living relatives of the testator or if the executor is unable to obtain consent, then citing each relative to appear in Surrogate’s Court to object to the probate. There are many issues that can arise in this early stage and BSAW Law has a great deal of experience representing executors throughout this process.
2. As executor, when can I distribute the testator’s assets?
Generally, the executor cannot distribute any assets until the court issues a decree appointing the executor and issues letters testamentary. Letters testamentary are certificates that state that the executor has the power to liquidate the testator’s assets. In New York State, an executor is personally liable for any claims made by a creditor of the estate if the claim is made within seven months of the executor being appointed and the executor distributed the assets of the estate to the beneficiaries. Therefore, the best course of action is for an executor to liquidate the testator’s assets into an estate account and hold them there until the seven month period lapses. During this time, the executor can pay legitimate creditors and debts of the estate. Our attorneys assist and counsel the executor throughout this process to ensure that all legitimate creditors are paid out of the estate’s assets before distributions to the beneficiaries are made.
3. What are the responsibilities of the executor?
Below is a general list of some of the responsibilities of the executor. Remember that every estate is different and there may be certain responsibilities that the Executor will have to attend to that are not listed below.
a. Once an executor is appointed, he or she will have the power to open an estate bank account and begin liquidating the estate assets. The executor should take an inventory of the decedent’s assets at (or before) this time.
b. The executor should work with the estate’s attorney and tax advisers to determine whether any income or estate tax will be owed by the estate.
c. The executor will have to decide what to do with the personal property of the decedent, depending on the provisions of the will. If there are specific bequests in the will, he or she will have to transfer ownership of the personal items to the beneficiary. If there are no specific bequests, he or she will have to decide if it would be best for the estate to give certain items to the beneficiaries, sell the items or donate the items. During this process the executor should act fairly quickly, to keep the estate moving.
d. The executor will deposit any income or refunds into the estate bank account.
e. The executor may have to sell the decedent’s house. The executor may have to decide if it would make sense to make repairs to the property. The executor will also have to work with the realtor to make sure the property is ready to be put on the market.
f. In New York State, an estate should remain open for seven months before distributions are made. After this seven month period, the executor may be able to start making distributions to the beneficiaries, if all expenses and taxes are paid.
g. The executor will help prepare an accounting (with his or her attorney) of the estate assets for the interested parties of the estate. This would also include any estate debts or expenses and income produced by the estate. Generally, the beneficiaries would review the accounting before they release the executor and the estate distributions are made.
4. I am the named executor in my parents’ wills but I live out of state, can I still act as executor?
Yes. An out of state resident can act as executor of an estate. The Court may require extra steps in certain situations, but generally it will be the same procedure as listed above.
5. I am named as the beneficiary of my father’s life insurance policy and he just passed away. Will this need to be probated?
Generally, if a decedent leaves assets that were jointly held or that have beneficiary designations, then those assets will pass outside of the “probatable estate” and will be distributed pursuant to the joint tenancy or beneficiary designation. A will does not control those distributions.