FAQs About the New York Probate Process
Dec. 29, 2023
At the Law Office Of Corey J. Rossi, we often encounter clients who have many questions about the probate process in New York. Probate can be a complex and emotionally challenging process, especially when you're grieving the loss of a loved one. We're here to help answer those questions and provide guidance during this difficult time. Let's dive into some of the most frequently asked questions.
1. Who can initiate the probate proceedings?
The probate process in New York starts with the closest family member of the deceased. Whether the deceased left a will or not, the family member can file for probate proceedings. If there is a will, its validity will be confirmed during these proceedings, and if there's no will, the estate will be distributed according to the laws of intestacy.
2. What responsibilities does an executor have?
An executor plays a crucial role in the probate process. They're entrusted with various tasks such as filing the will and death certificate, along with a petition for probate, at the Surrogate's Court. The executor also has the responsibility of notifying all heirs, beneficiaries, and creditors about the probate proceedings.
Furthermore, they're tasked with paying off any debts or obligations the estate may have before distributions are made to beneficiaries. This includes filing tax returns, collecting assets, and inventorying them for record-keeping purposes. The executor ensures that the deceased's wishes are carried out as per the instructions in the will.
3. Is it possible to challenge a will?
Yes, a will can indeed be challenged. Those who believe they were unfairly left out of the will can challenge its validity. They may argue that their omission was unintentional, coerced, or that the deceased was not in a sound mental state when the will was created. Such a process can be complex and may require the assistance of a probate attorney.
4. What happens if the deceased had creditors?
One of the primary responsibilities of the executor is to pay off all estate creditors. This means that before any distributions are made to beneficiaries, all debts and obligations of the estate must be satisfied first. If there are any creditors, they will be notified about the probate proceedings so they can make their claims.
5. What if the estate doesn’t have enough cash to cover debts and taxes?
In cases where the estate lacks sufficient cash to cover debts and taxes, the executor may need to collect and sell assets to raise the necessary funds. Conversely, if the estate is owed money, such as from rents or financial agreements, the executor will be responsible for collecting these funds.
6. What are the probate laws in New York?
Probate in New York is governed by two key pieces of legislation: the Surrogate's Court Procedure Act (SCPA) and the Estates Powers and Trust Law (EPTL). These laws define the probate process, including the filing of necessary documents, distribution of assets, and handling of challenges or disputes.
7. Can probate be avoided for small estates?
Yes, probate can be avoided for small estates. If the estate is valued at $50,000 or less, a voluntary administration proceeding can be initiated instead of probate. However, a petition still needs to be filed with the Surrogate's Court by the closest family member of the deceased.
8. What happens if there is no will?
When a person dies without leaving a will, it's known as dying intestate. In such cases, the court will determine the distribution of assets according to the laws of intestacy. The closest family member can file for an administrative proceeding to handle the estate.
9. How long does the probate process take?
The duration of the probate process can vary significantly, depending on the complexity of the estate and whether any disputes arise. Generally, uncomplicated estates can be settled within six months to a year. However, if the will is contested or if the estate contains complex assets, the process may take several years to complete.
10. Can an executor be compensated for their work?
Yes, an executor is typically entitled to compensation for the work they undertake on behalf of the estate. This is often referred to as an executor's fee or commission. The compensation amount depends on the value of the estate and is determined according to state law. It's important to note that any compensation received by the executor for their services is taxable.
Reach Out to Us Today
We hope this information helps clarify the New York probate process. At the Law Office Of Corey J. Rossi, we're committed to providing compassionate and competent legal guidance throughout this process. If you have any more questions or need assistance, don't hesitate to contact us. The Law Office Of Corey J. Rossi, PLLC proudly serves clients in Tonawanda, Amherst, and Wheatfield, New York, as well as the counties of Erie and Niagara.