Table Of Contents

1. What is Probate in New York?

2. When Do You Have To Probate An Estate?

3. Why Is Probate Necessary?

4. The Stages Of Probate in New York Explained

5. How Long Does Probate Take?

6. What Are The Probate Fees In New York?

7. How To Avoid Probate In New York

8. Dying Without A Will In New York

9. What Is The Probate Code In New York?

Introduction

Going through probate can feel a bit daunting if you’ve never dealt with the process before. Each state has slightly different rules and procedures for dealing with the estate of someone who has passed away, and knowing what awaits you will let you feel more prepared for the tasks ahead.

We understand how arduous the probate process can be, because of this - we've created this total guide to probate to help you administer an estate.

Probate is the process of validating a deceased’s will via a designated court. While not every estate has to go through probate, larger and more complicated estates tend to need a grant of probate from the responsible courts. In New York’s case, this is the Surrogate’s Court. The court will also validate the appointment of an estate executor nominated in the will. This official approval often makes the estate executor’s job much easier, since they’ll have legal confirmation of their authority to present to institutions like banks when dealing with the estate’s finances.

According to New York state law, all estates worth over $50,000 are subject to go through probate.

However, there are some instances where certain assets like: Insurance policies, joint accounts, assets in a living trust, assets held in joint tenancy are all not subject to probate in New York.

As mentioned above, probate is the process of validating a deceased’s will. In New York, this takes place at the Surrogate’s Court in the county where the deceased died. After validating the will, the Court appoints an estate executor who’s in charge of overseeing the distribution of the assets that make up the estate—including all of the personal possessions, investments, real estate, and cash—to the designated beneficiaries. The Surrogate’s Court oversees the executor’s work and gives its final approval, thereby declaring the estate closed.

While smaller estates can get away with a simplified version of probate—more on that later—, larger and more complex estates often can’t evade the probate process and the estate’s executor will need the Court’s approval to carry out their duties.

Submitting the will and naming an executor

In order to initiate probate proceedings in the state of New York, someone—usually the chosen estate executor—files the original will along with a death certificate to the corresponding Surrogate’s Court where the deceased died. The estate executor, sometimes known as the personal representative, will also usually file for a probate petition.

At this point, if the judge, known as the Surrogate, finds the will to be authentic and valid, the executor/administrator named in the will is officially appointed with a letter of testamentary or letter of administration providing the authority to oversee the distribution of the estate’s assets.

Settling the estate

Once the Surrogate’s Court has approved everything, the probate process can go ahead and the estate executor can begin settling the estate. A large part of estate administration includes categorizing and appraising all of the estate’s assets, including any financial accounts, investments, personal property such as vehicles, clothes, artwork, and furniture, life insurance policies, businesses, and real estate. This inventory usually must be handed over to the Court within six months of the executor’s appointment.

This is also the time when beneficiaries of the estate must be contacted and notified of the probate proceedings. In addition to evaluating the worth of the estate, an executor must also take care of any outstanding debt the estate has accrued, even during the probate process.

Before any beneficiaries can receive their inheritance, all debts, fees, and taxes must be paid by the estate. This includes filing a Federal Estate Tax Return and a Federal Income Tax return for the deceased. The executor is also responsible for ensuring that all assets, such as real estate and vehicles, are properly maintained and cared for until they’re sold or the estate is closed.

Closing the estate

Once all outstanding debts, fees, and taxes have been paid and all of the estate’s assets have been appraised and distributed to beneficiaries according to the will, the executor must file a closing statement with the Court to prove they’ve settled the estate and to ask to be officially relieved of their duties as executor. Once the Court approves of everything and has found all estate obligations taken care of, the executor is released and the estate is officially closed.

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There’s really no straightforward answer as to how long probate takes in the state of New York, since the length of time depends on a number of factors: The size and complexity of the estate, what county the probate process takes place in, whether the will is contested, and whether there are conflicts between beneficiaries and executors, just to name a few.

On average, it takes anywhere between 6 months - 1 year to settle an estate in New York. Smaller, simple estates can sometimes be wrapped up quicker, but complications can often extend the probate timeline for weeks and months.

Probate fees consist of a number of different things, including whether you choose to hire an estate lawyer, an estate accountant, a compensation fee for the executor if they choose to take one, and court filings and taxes based on the size of the estate.

The filing fee for probate depends on the size of the estate. Estates that are valued at less than $10,000, for example, pay a fee of $45, while estates over $500,000 have to pay a fee of $1,250. The entire fee structure is as follows:

Then there are individual fees for the filing of additional petitions. Considering that a form needs to be filed for almost any changes or petitions that should be implemented during probate, it’s no wonder that fees can really start to rack up once wills get contested and executors and beneficiaries start disagreeing.

While an executor will always have to submit the will and a death certificate to the Surrogate’s Court, there are ways to skip “formal” probate and go for an expedited version instead. The key here is to have an estate that’s considered small, by New York state standards.

In New York, a small estate is any estate that consists of personal property—not real estate—valued at $50,000 or less. In this case, an executor or personal representative can petition for a voluntary administration via an affidavit. They’ll need to submit the death certificate and the will and pay a filing fee of $1. Once the Surrogate’s Court grants the petition, the executor can go ahead and start compiling and appraising the estate’s assets and distributing them to beneficiaries. This process has some obvious advantages, the biggest one being lower fees and a quicker settlement process.

So how can the estate be reduced so it’s small enough to qualify for a voluntary administration? This is where good foresight and planning comes in. The estate holder can take certain steps during their lifetime in order to reduce the size of their estate and ensure their heirs’ inheritance doesn’t get eaten up by fees and taxes.

Some strategies to reduce the size of your estate include creating living trusts for your assets, so that the assets are no longer officially part of your estate and belong to the trust instead. Your beneficiaries will then receive the assets assigned to them through the trust after your death. Other strategies include giving away assets to your beneficiaries in your lifetime and creating joint accounts and payable-on-death designations for bank accounts, so that joint holders and beneficiaries can immediately take ownership of financial accounts and their contents without having to go through probate.

Dying without a will is known as dying intestate. Given that more than half of all Americans report not having a will, this is more common than one might think. The thing about dying without a will is that the estate still needs to be taken care of, but now it’s completely in the state’s hands and completely out of yours. It doesn’t matter that you left a voice message detailing your wishes, or told them to your children in private. As long as there’s no legally binding will, the state determines how your estate is dealt with.

In the case of a missing or unvalid will, the Surrogate’s Court will follow specific succession laws. The first person in line to inherit everything—also referred to as the heir-in-law—is the surviving spouse. If there are children in addition to a surviving spouse, then the spouse inherits the first $50,000 plus half of the estate. The children inherit everything else. If there is no spouse, the children inherit everything. If there are no children and no spouse, then the deceased’s parents inherit everything, and so forth down the family tree. If no living relatives can be found, then the estate goes to the state of New York.

As you can imagine, this isn’t an ideal situation. Close family friends are entitled to nothing, even if you wanted to leave something to them. You’ll also have no say over how minors or pets or dependents get taken care of. That’s why writing a legally binding will is a crucial responsibility that shouldn’t be put off.

Probate codes streamline and standardize probate proceedings in many states. The codes govern how inheritances and estates are dealt with. While some states have a universal probate code, other states, like New York, have their own specific codes.

New York’s probate code, also known as Consolidated Laws, Estates, Powers and Trusts Law, has specific regulations regarding intestacy laws—ie. Succession rules when someone dies without a will—, regulations surrounding different kinds of trusts, including honorary trusts for pets, specific instructions on what actions creditors can take, and other provisions affecting estates.

The Surrogate's Court Procedure Act provides specific instructions on what court actions can be taken and how, including submitting petitions to open safe deposit boxes, how to appoint guardians, and how to verify claims for expenses incurred on behalf of the estate.

ClearEstate Is Your Partner For All Probate Matters

Navigating probate often means juggling a lot of things at once, often while you’re in the middle of dealing with personal grief and family stress. At ClearEstate, we understand how difficult this time is and aim to empower executors and beneficiaries by equipping them with the information they need to navigate the probate process. With resources such as automated form filing, an inventory of assets and liabilities, and beneficiary portals, we help you navigate the process as comfortably and seamlessly as possible. And if you find yourself needing more of a hand, we can even take over the entire probate application process for you. Our fixed, transparent pricing structure ensures you’ll never be surprised with hidden fees or unexpected costs.

Curious to learn more? Reach out today for a free consultation.