Probate Lawyer NYC

In order to probate, you will need to
(i) gather documents;
(ii) fill out forms;
(iii) go to court; and,
(iv) pay the fee.
You may also decide to hire a probate attorney.

You will need:
— the original +1 copy of the Will;
— A certified copy of the Death Certificate; and,
— And, if the Decedent was survived by only one person or by cousins, then you will need an Affidavit of Heirship from a disinterested person

The Fees depend on the value of the gross estate. Here’s a schedule from SCPA 2402: 

Go to the Surrogate’s Court in the County where your Decedent died or had property to submit all the forms and pay the fee. If the Court issues a Citation, then attend Court on the return date of Citation. If nobody appears and objects, the Court will issue letters. If somebody objects, consider calling an attorney. Once letters are issued, then you will become the Executor. Facts and circumstances may vary. If you have nuances, consider contacting a probate attorney familiar with the local rules.

In order to understand probate, the probate process, and the proceedings held in the Surrogate’s Court, it is first essential to understand the following terms and definitions:

1. Decedent: A deceased individual
2. Estate: All of the property owned by the decedent
3. Beneficiaries: The persons (or entities) that are designated under the decedent’s will to benefit from the decedent’s property

New York State probate law, and the probate process, is set forth in the Surrogate’s Court Procedure Act (“SCPA”) and the Estates Powers and Trust Law (“EPTL”). SCPA defines terms relating to probate (e.g., executor, person interested, estate); 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 decedent’s property.

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.

A probate asset is one that does not have a beneficiary designation and does not pass by operation of law. Indeed, probate assets are those assets that are owned solely in the name of the decedent. If the decedent either owned assets jointly with another individual or named a beneficiary of any of her assets, those assets pass by operation of law and are not the subject of probate proceedings.

For example, if Elaine died owning a house in her name alone. That house is a probate asset, and that house can only be disposed of by a fiduciary that was appointed by the Surrogate’s Court. However, if Elaine owned the house jointly with her husband, the husband can take ownership of without any kind of court intervention. Sometimes you do not need to probate when the only asset is a house.

Examples of probate assets include any real property titled solely in the name of the decedent; individually-owned savings, checking and brokerage accounts as opposed to jointly owned bank accounts, which are non-probate assets; art; cars; jewelry; cash; and electronic devices.

Where a person dies without a Will, the administration proceeding is commenced in Surrogate’s Court.  Since the person died without naming anyone to act as fiduciary or beneficiaries, the law sets forth who may become the fiduciary of the estate and who is entitled to share in the decedent’s assets.  SCPA § 1001 provides a hierarchy of individuals who may obtain Letters of Administration from the Court where a decedent dies without a will.  EPTL § 4-1.1 provides for the distribution of an intestate decedent’s property.

The process of an administration proceeding is very similar to that of a probate proceeding, except that the court forms look slightly different and there are generally fewer steps involved.

The decedent’s next of kin must be given notice of the probate proceeding because they must be afforded the opportunity to object to the will if they so choose.  There are a few ways to afford them this opportunity.  The Petitioner should first try to obtain consents and waivers from the decedent’s next of kin.  By signing a waiver and consent, an individual is consenting to the probate of the will and the Court’s appointment of executor named in the will.  The Petitioner should send blank waivers to the decedent’s next of kin and request their signatures.  This process should be done before the Petitioner files the Petition with the Court.  If the Petitioner receives all of the waivers signed by the next of kin, he can then file the petition, the waivers, and any other supporting documents (affidavit of heirship, death certificate, original will, notice of probate) with the Court.

If the Petitioner does not receive one or more of the waivers that he mailed, then the Petitioner must file the petition with the supporting documents with the Court and supply the court with a citation, which a court clerk will then complete (by providing a return date and signing the citation) and then mail back to the Petitioner.  The citation will list all individuals who must be served the citation.  The Petitioner must then serve the citation on all individuals who are named on the citation.  (A citation may also be needed in certain situations, even where all next of kin has signed waivers.)

The beneficiaries of the decedent’s will who are not also the decedent’s next of kin must be given notice of the proceeding.  These beneficiaries are only entitled to a Notice of Probate, which only provides notice of the probate proceeding.  They are not afforded the opportunity to be heard in court, since they would not have been entitled to share in the estate had the decedent not executed a will.

At the return date, as long as all of the persons interested in the estate have been served prior to the return date and no one objects to probate of the will, the surrogate will state on the record that decree is to be granted, meaning that the will is probated and the Court will issue Letters Testamentary to the nominated executor.  Within the following few weeks, the Court will then sign a decree, in which he orders the probate of the will and appointment of the Executor, and will issue the Letters Testamentary.

Should a person interested in the estate appear and wish to object to the will, the Court will most likely not immediately grant decree.  After the objecting party files objections, the parties will meet in court for conferences, which can either lead to settlement or litigation.

As the probate process is time-consuming and involves a lot of paperwork, individuals usually hire attorneys to assist them in the probate proceedings.

Here are the top 10 questions to ask:

1. Is Probate and Estate Administration one of your primary areas of focus?
2. Do you regularly appear in Surrogate’s Court?
3. Do you regularly appear in the Surrogate’s Court in the county in which this Will is going to be probated?
4. What documents will I need to provide you?
5. Do you see anything wrong with the Will?
6. What are the duties of an executor?
7. How long will this process take?
8. How do you bill for your time? (Flat fee or hourly?)
9. How much will this cost?
10. Are you personally handling the filing or will your associate, paralegal, or other individual be assisting you?

It is important for the client to provide all the facts of the matter to the probate attorney and ask if the attorney believes that there will be a will contest. Will contests involve more work than uncontested will proceedings and are more costly and time-consuming.

When filing a Petition for Letters Testamentary, the Petitioner must also file a fee, the amount of which varies depending on the size of the estate. SCPA 2402 provides the fee rates for various estate sizes. In addition, once the Court issues Letters, it charges six dollars ($6) per Letter.

Attorneys generally charge percentage fees, fixed rate or hourly fees in connection with estates proceedings. The rates can vary in New York anywhere from $300 dollars an hour to $700 dollars an hour for probate matters. A typical New York estate can usually incur between $3,000 and $10,000 just to obtain Letters Testamentary. The matter will be costly if litigation is involved.

Once the will is admitted to probate, the Executor should collect all of the decedent’s assets, pay the decedent’s taxes (including the decedent’s final income tax and any estate taxes), pay the decedent’s bills and other outstanding expenses, and then distribute the decedent’s assets in accordance with the decedent’s will.

You will need the following:
— Probate Petition
— List the next of kin, primary executor, and adversely affected beneficiaries in paragraph 6 of the Petition.
— Put everybody who is mentioned in the will and who is not in paragraph 6 in paragraph 7.
— Either a “Waiver of Process; Consent to Probate” (“Waiver”) or a “Citation” for everybody listed in paragraph 6. If the person agrees to your appointment as Executor, have that person sign a Waiver. If that person does not agree, then ask the Court to issue a Citation that you will need to serve upon that person. Click here to read more about serving papers at rklawny.com/resources.
— Notice of Probate for everybody listed in paragraph 7, along with an Affidavit of Mailing of Notice of Probate.
— Affidavit of Comparison.
— Affidavit of Assets and Liabilities.
— Affidavit of Attesting Witnesses when the Will does not contain a Self-Proving Affidavit

There are two types of proceedings that can be commenced in a New York State Surrogate’s Court in order to obtain authority to act as fiduciary of an estate: an administration proceeding and a probate proceeding.

When a person dies without a Last Will and Testament (“Will”), that person is said to have died “intestate.” Where there is no Will, the individual died without naming a person to handle their affairs or manage their estate.

Where a person dies with a Will, the person is said to have died testate. Their Last Will & Testament must be filed with the Surrogate’s Court and proven to be valid. The Probate process is how the Court accepts the Will of a person and grants authority to a qualified fiduciary to manage that person’s estate.

If the Court decides that the Will is valid, it will issue “Letters Testamentary” to the nominated Executor, which appoints him as the Executor and authorizes him to collect the decedent’s probate assets, pay the decedent’s taxes and bills, and distribute the decedent’s probate assets to the beneficiaries named in the decedent’s will.

The Probate process is only necessary where a person has a Last Will and died with probate assets. (Probate assets are defined in the next section.)  Where a person dies with probate assets in his or her estate, the executor nominated in the decedent’s Will must probate the decedent’s will in order to collect and distribute those probate assets. When there are no probate assets, or when there are no assets, then no need to probate. For example, if Aunt Becky died with both a Will and beneficiary designations on all of her accounts, then there is no need to probate because the beneficiary designations override the terms of the Will and will serve as the mechanism by which all assets are distributed.

This rule is strictly enforced both by the courts and by financial institutions.  When an individual attempts to close out a bank account that was owned only in the decedent’s name, the bank will ask the individual for a copy of the decedent’s death certificate and a certified copy of the Letters Testamentary issued by the Surrogate’s Court.  A bank will refuse to assist the individual in any way until the individual can obtain Letters Testamentary and provide a certified copy to the bank. (If there is a beneficiary designation on the bank account, then the bank will not require the Letters Testamentary and will instead just ask for the identification of the beneficiary).

Examples of non-probate assets include jointly held real property; jointly held savings, checking, and brokerage accounts; bank accounts with a named beneficiary; life insurance policies with a named beneficiary; and assets held in trust.

The Executor nominated in the decedent’s Will should commence a probate proceeding. The Executor – who is known as the Petitioner for the purpose of the proceeding – commences the proceeding by preparing a petition that provides the Court with information about the decedent, including the decedent’s date of death, a list of the names and addresses of the decedent’s next of kin – the individuals who would benefit from the decedent’s will had the decedent not executed the will, a list of the names and addresses of the beneficiaries named in the decedent’s will, and a list of the decedent’s probate assets and their values.

The Petitioner must give notice of the probate proceeding to the decedent’s next of kin and the beneficiaries of the decedent’s will.

As mentioned above, the Petitioner must file a Petition for Letters Testamentary, the original will, and the death certificate. Other documents may be needed, such as an Affidavit of Heirship detailing the decedent’s family tree. He must also either provide waivers signed by the decedent’s next of kin or show that he has served the citation on those individuals. A Notice of Probate must also be served on all beneficiaries who are not also next of kin. Some courts prefer that the petitioner provide a proposed decree for the court to sign once the will is probated, while other courts provide the proposed decrees themselves.

A probate attorney is not required by law.  An individual commencing a probate proceeding can commence it pro se (without an attorney). A person can file a divorce on their own or even sue City Hall on their own-it just isn’t easy. An understanding of the probate laws is necessary to complete the court paperwork, properly give notice to all persons who have an interest in the estate and distribute all the decedent’s property.  Therefore, it is highly recommended that anyone attempting to probate a will hire an attorney.

It is especially recommended that an individual hire a probate attorney where he expects that someone will be contesting probate of the decedent’s will.  Estate litigation matters require expert knowledge of all estate and probate laws, as well as an understanding of the New York State civil practice rules.

Depending on the complexity of the matter, the timeframe may vary. If there are few persons interested in the estate and no one wishes to the contest the will, the probate process should last no longer than 15 months. However, if there are many parties, especially parties whose whereabouts are unknown, the process can take longer. See below.

If the estate is straightforward (all persons with an interest in the estate have been found and no one has contested to the probate of the will), the probate process should only take about three to six months.

However, if the estate is more complicated, it can take years before the decedent’s will is probated. If a will is contested and the parties refuse to settle the matter, the parties may decide to litigate the matter and Estate litigation can take years to resolve.

There are a few ways to avoid probate. Revocable trusts are often used to avoid probate. Trust assets are not probate assets and, thus, they avoid probate. In order for this to work, an individual creating a trust must transfer title of all of his assets to the name of the trust. In practice, however, this doesn’t always work, as trust creators often neglect to transfer all of their assets before they die. Pour-over wills are often executed in conjunction with the revocable trust in order to “catch” all property that was not transferred into the trust.

An individual can also create non-probate assets, such as those described above.

A distinction is to be made between property that is held jointly and property that is held as tenants in common. If an individual owns real property as tenants in common with one or more individuals, that individual is free to distribute his share of the property (either during life or after death), and the share of the property is considered a probate asset if it is still in his possession after his death. If, however, that individual owns the real property either as joint tenants with rights of survivorship or as joint tenants by the entirety (only spouses can own property as tenants by the entirety), then the real property is not a probate asset, as it then passes to the survivor upon the decedent’s death.

The decedent’s next of kin, also known as the decedent’s distributees, are named in the petition because they have an interest in the decedent’s estate, as they are the individuals who would have been entitled to share in the decedent’s estate if the decedent had died without a will. The purpose of naming them is to give them notice of the probate proceeding in order to allow them an opportunity to object to the will and give reasons for objecting to the will.

If you die without a Will, an Estate Administrator may need to be appointed in order to manage your property and handle your post mortem affairs. An Estate Administration attorney can assist with this process.

Surrogate’s Court Procedures Act Section 1001 sets forth who can be the Estate Administrator, and the priority in which Letters of Administration can be issued. The order of priority for Letters of Administration are:

— Spouse
— Child(ren)
— Grandchild(ren)
— Parent(s)
— Sibling(s)

A first cousin can serve as an estate administrator ONLY when all of the cousins on both sides of the family are known and the Court has acquired jurisdiction over all of them. Otherwise, in a cousin’s case, Letters of Administration shall issue to the Public Administrator of the county of Decedent’s death.

In some cases, a person not on the above list can serve as a designated administrator but this can only happen if all of the other interested parties consent to the appointment of the designated person.

(There is an interesting anomaly in the law as presently written in that if you die without a Will, all of the next of kin can choose and designate an independent person to serve as an Administrator and there is no additional requirement that the distributees themselves be eligible. Where there is a Will, however, if all of the nominated executors cannot be found or are not qualified, the residuary beneficiaries can choose an independent person to serve as Administrator, c.t.a. only if each of the residuary beneficiaries are themselves eligible. Compare SCPA 1001(6) with SCPA 1418(6).) An estate administration attorney can help you determine who should petition to be the administrator. 

Once letters of Administration have issued, the Estate Administrator’s duties parallel the Executor’s duties. The Administrator should find and collect the assets. Any liquid assets should be deposited into an estate account. If there are parcels of real property, then the Administrator needs to determine whether the property should be sold or distributed in kind. The Administrator should wait to see what claims are filed against the estate. Once the assets are collected, the claims and debts are satisfied, then the Administrator can distribute the property in accordance with the intestate distribution schedule set forth in EPTL 4-1.1. I typically recommend that the Administrator create a distribution chart. I also ask that all beneficiaries sign a Receipt Release and Indemnification Agreement before the Administrator turns over the funds so that the Administrator can be protected.

First, you must figure out who the Decedent was immediately survived by. The person who immediately survived the Decedent has the first priority to become an Administrator, unless you can find a reason to disqualify them.

Then Gather:
— A certified copy of the Death Certificate
— A paid copy of the funeral bill
— And, if the Decedent was survived by only one person or by cousins, an Affidavit of Heirship from a disinterested person.

Next, fill out the forms.
You can download them here:
— Administration Petition;
— “Waiver of Process; Consent to Probate” (“Waiver”) or a “Citation” for everybody listed in Paragraph 6;
— Affidavit of Assets and Liabilities;
— If you are requesting no bond, then an Affidavit to Dispense with the Filing of a Bond.

Bring The Filing Fee.
The Fees depend on the value of the gross estate. Here’s a quick cheat sheet chart from SCPA 2402: 

Go to the Surrogate’s Court in the County where you Decedent died or had property to submit all the forms. Go to the Administration Department (because you have do NOT have the will). Submit the forms and pay the fee. If you did not get a waiver and consent from all of your necessary parties, the Court will issue a Citation with a return date. Go to Court on the return date. If nobody objects, the Court will issue letters. If somebody objects, consider calling an attorney.
Facts and circumstances may differ in every case.