NOTICE: These FAQ pages provide informal guidance and should NOT be relied upon as legal advice. Submit a Client Intake Form or contact our office if you need legal counsel.

  • Who should Probate the estate?
  • Who inherits if there is no Will?
  • What is Probate?
  • What is Administration?
  • What is a Small Estate Administration (or Voluntary Administration)?
  • What is Ancillary Probate?
  • What are the Executor's duties and responsibilities?
  • What is the Executor's compensation?
  • When should you Probate an estate?
  • When is Probate complete?
  • When should you avoid Probate?
  • Where does Probate take place?
  • Why should you Probate an estate?

  • Who should Probate the estate?

    • The Executor named in the Will should probate the estate. If there is no Will, the estate should be administered by the deceased person's closest surviving relative in the following order of priority: spouse, children, grandchildren, parents, siblings, nieces/nephews, etc.

  • Who inherits if there is no Will?

    • If there is no Will, inheritance is according to New York's laws of intestacy. If the deceased person was survived by:
    1. a spouse only, then all to the spouse
    2. a spouse and children, then $50,000 to the spouse, 1/2 of the remainder to the spouse, and the other 1/2 divided equally among the children
    3. no spouse and children, then divided equally among the children
    4. no spouse and no children, then to the parents
    5. no spouse, no children, and no parents, then divided equally among the siblings

  • What is Probate?

    • Probate is the Court process to obtain legal authority to act for a deceased person's estate when the person died with a Will. This includes:
    1. Closing bank and brokerage accounts
    2. Collecting insurance, annuity, and retirement proceeds (if payable to the estate)
    3. Transferring or selling real estate
    4. Depositing checks made out to the deceased
    5. Identifying and paying creditors

  • What is Administration?

    • Administration is the Court process to obtain legal authority to act for a deceased person's estate when the person died without a Will. The main differences between Probate and Administration are:
    1. In Administration, since there is no Will nominating the Executor, the surviving family may not agree on who should serve as Administrator of the estate.
    2. In some Administration cases, the Court will require the Administrator to purchase and file a bond with the Court. A bond is a type of insurance policy which protects the other heirs in case the Administrator runs off with the estate assets.

  • What is a Small Estate Administration (or Voluntary Administration)?

    • Small estate administration is a simplified Court procedure available whenever the deceased person's assets are less than $20,000.

  • What is Ancillary Probate?

    • Ancillary probate is the Court Procedure to obtain legal authority for a deceased person's assets located in a State different from the State of original probate.

    For example, Mr. X dies owning property in New York and Florida. Mr. X was a resident of New York, so his spouse, Mrs. X, will probate his Will in New York, granting her the authority to control or sell the New York property. After the New York probate is complete, Mrs. X must initiate an ancillary probate proceeding in Florida to similarly control or sell the Florida property.

  • What are the Executor's duties and responsibilities?

    • The Executor's job is to protect a deceased person's property until all debts and taxes have been paid, and then to transfer whatever's left to the rightful heirs (either named in the Will or by New York's laws of intestacy if there is no Will). Specifically, the Executor must:
    1. Conduct all Court proceedings necessary to obtain full legal authority for the estate assets, such as Probate, Administration, ancillary probate, etc.
    2. Identify all of the deceased person's assets, including: bank and brokerage accounts, insurance or retirement benefits, real estate, and other valuables (such as jewelry, automobiles, etc.).
    3. Close bank accounts and transfer the funds to an estate bank account.
    4. Close brokerage accounts and transfer the portfolio to an estate brokerage account.
    5. Collect and deposit insurance and retirement benefit checks.
    6. Take physical possession of real estate and other valuables.
    7. Handle day-to-day details, such as terminating leases, cancelling cable and telephone services, cancelling credit cards, notifying the post office, etc.
    8. Use estate funds to pay continuing expenses, such as mortgage payments, utility bills, and homeowner's insurance premiums.
    9. Use estate funds to pay the deceased person's taxes and debts. The Executor must make sure that the deceased person's final income tax return is filed, as well as estate tax returns, if necessary.
    10. Lastly, the Executor must disburse the remaining estate assets to the beneficiaries according to the Will (or according to New York's laws of intestacy if there is no Will).

  • What is the Executor's compensation?

    • Under New York State law, the Executor's fee is calculated as a percentage of the estate assets, as follows:
      5% on the first $100,000
      4% on the next $200,000
      3% on the next $700,000
      2.5% on the next $4,000,000
      2% on the excess over $5,000,000

  • When should you Probate an estate?

    • You should probate the estate as soon as possible after the death. However, it's possible to probate an estate at anytime, even long after death.

    For example, Mr. X dies and leaves his house to his child, Mr. Y. Mr. Y continues to live in the house for many years, never bothering to probate Mr. X's estate of change the deed to the house. When Mr. Y eventually tries to sell the house, he will probably have to probate Mr. X's estate at that time, even though it is many years after his death.

  • When is Probate complete?

    • Probate is considered complete when the Executor has satisfied all of the deceased person's taxes and debts, and completely distributed all remaining assets to the beneficiaries. The timeframe depends on many factors, but generally takes:
    1. Nine months for estate with no estate tax due
    2. Eighteen months to three years for taxable estates or estates with certain charitable beneficiaries.

  • When should you avoid Probate?

    • New York's Surrogate Court probate process is not as costly or burdensome as many other states, so avoiding probate for the sake of avoiding the Court procedure is not a major concern. Nonetheless, some common reasons for avoiding probate in New York are:
    1. To protect privacy. Probate proceedings and Wills are a matter of public record.
    2. To avoid multiple probates. If you own assets in multiple States or Countries, probate and multiple ancillary probates may be very burdensome.
    3. To avoid delay. New York's probate process is not as slow as many other states, but you may wish to avoid probate to avoid any possible delay in collecting assets.
    4. To avoid probate fees. New York's probate fees can be as much as $1,250, with legal fees possibly several thousands of dollars, as well.

  • Where does Probate take place?

    • In New York, probate takes place in the Surrogate's Court for the County where the decedent lived.

  • Why should you Probate an estate?

    • You should probate an estate whenever someone dies with assets that must be sold or transferred to the heirs (except for joint assets or accounts with a beneficiary designation). Without probate, you may not be able to access bank or brokerage accounts, collect and deposit retirement benefit checks, or sell or transfer real estate.

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