Probate & Administration 2018-03-13T17:34:45+00:00

Following the death of an individual there are certain steps that need to be taken. These include:

Finding important papers
This includes locating a Will, financial documents, the deed to a burial plot or instructions regarding how to handle a body after death. The proper storage of these papers is extremely important. Bank accounts and safe deposit boxes are sealed when notification of a death is made and may only be unsealed by order of the court.

Obtaining a Certified Copy of the Death Certificate
A doctor or medical examiner will fill out one section of a death certificate and a funeral director will pick it up and fill out the rest of the information with the help of your family. The funeral director has 72 hours to file the death certificate, after which, copies are available from the New York State Department of Health or from the New York City Department of Mental Health & Hygiene if in NYC.

Handling of your body after death
Your body must be buried or cremated, according to your prior instructions, if you gave any. If you made a written instruction selecting someone to dispose of your remains, that person will handle those tasks. If you did not make such a selection, the law imposes responsibility in the following order: surviving spouse or domestic partner, and then moving on to adult children, surviving parents, surviving siblings, a guardian appointed by court order, all the way to close friends and beyond.

Preserving your assets
Your assets must be located and collected for deposit in an estate account. In rare cases, the police can seal your home after your death, and those managing your estate will need a court order to have it unsealed.

Probate of your Will
If you made a Will, you most likely named a person who is responsible for filing your Will with the court, collecting your assets, paying creditors, funeral expenses, any applicable taxes, and, finally, distributing the remaining assets to the heirs as stated in your Will.

Administration of your estate if no Will
If you died without a Will, then you are said to have died “intestate.” In this situation, the court will appoint a person to handle your estate, usually a close relative who will petition the court for an appointment.

What is the process of administrating an estate if there is a Will?

Once found following someone’s death, the Will is presented to the Surrogate’s Court in the county where the deceased person last resided with a petition to probate the Will. Probate is the court process which determines the validity of the Will and that makes sure the terms of the Will are carried out under the law. The petition is generally filed by the person named as “Executor” of the Will, who is then issued “letters testamentary” by the Court, giving them power to execute the terms of the Will. All interested people, beneficiaries and heirs-at-law, will be notified of the probate proceeding. Assets, property and possessions of the deceased person are called the “estate”. Estates valued over $30,000 must be probated when there is a Will. Certain assets, including proceeds of an insurance policy, retirement accounts, 401k and IRA, and other accounts with a named beneficiary, are not subject to the probate process. As part of their responsibilities, Executors must periodically complete reports and file tax returns on behalf of the estate. They are generally entitled to compensation from the estate for their efforts.

What is the process of administrating an estate if there is no Will?

If there is no Will, the court process is called an administration proceeding. The representative for the estate is called the “Administrator”, who receives “letters of administration” from the court to administer the estate. A family member or close friend will usually petition the court, which generally looks to the family of the deceased to serve in that capacity. If there are multiple heirs on one level, like brothers and sisters, the court will usually name them as co-administrators.Consent must be sought from any heir that has equal or higher heirship to the proposed administrator(s).

In the absence of a Will, New York law determines the order of inheritance of property based upon which heirs are alive at the time of death. Common situations are as follows:

  • A spouse and children, either natural or adopted, (referred to as “issue”) who are still living –The first $50,000 goes to the spouse. Half of the remaining money and property goes to the spouse and the other half is divided among the issue evenly.
  • A spouse who is living but no living issue-All goes to the spouse.
  • No living spouse, but issue who are living-All divided evenly among issue.
  • No living spouse or issue, but living parent(s)-All goes to parent(s).
  • Only have living issue of parents (brother(s) or sister(s) or, if they are not living, their issue) – All is divided among brother(s) and/or sister(s), or their issue if they are not alive.
  • Only have living grandparent(s) or, if they are not living, their issue (your aunts, uncles, and first cousins)-One half goes to the father’s parents or to their issue and the other half goes to the mother’s parents or their issue.
  • If there is no one living on one side, all goes to other side. If there are no living heirs recognized by New York law – All goes to State of New York.

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