New York Probate Process
There are two definitions of probate. The more common definition is that of having a will submitted to the court and the court determining that it is the decedent’s Last Will and Testament. In other words, that the will meets all the requirements of the law, was properly executed and witnessed, and contains all the other conditions set forth in the statute as to what a Last Will and Testament should be. Some people use the word “probate” to mean the whole process of executing the will, the transferring of assets, filing tax returns, and doing everything else involved with estate administration.
Executing the Will
A petition is usually signed by the nominated executor or executors and presented to the court with the original will, affidavits of the witnesses to the will, and various other documents that the court requires. The court issues a decree affirming that this is the Last Will and Testament of the person who died. The court then issues Letter of Testamentary confirming that the persons nominated as executors are in fact the executors. Also, if there are any trusts under the will, the decree states they are also accepted as such and the trustees are given the powers by the court.
The individuals named as executors in the will must submit an oath that they will do the job required of them and be honest. The same thing applies to trustees; anyone mentioned in the will is notified. Those who would inherit in the absence of a valid will must be served with legal process unless they consent.
When those named in the will live in the state of New York, they have to be served with process personally. When they live out of the state, they can be served by certified or registered mail. They have the right to challenge the will, unless they have signed a document agreeing to the terms of the will and saying they no longer require to be served with a citation. Once the executors are appointed, the estate administration can commence.
Length of the New York Probate Process
The probate process varies from county to county; each county has its own Surrogate’s Court. If everyone agrees; there is no disagreement that the will should be admitted to probate; and the people who are entitled to inherit sign waivers and consents; the process can be from ten days to three weeks. Sometimes probate takes longer, such as when the court clerks could be very busy or on vacation. If someone contests the probate, the process can go on for years since it is akin to litigation.
Role of an Attorney
Having an attorney is beneficial for preparing the petition and other necessary documentation. If there are issues as to who should or should not be served, an attorney will know how to proceed; whereas, a layperson would not. Throughout the whole process of steering the will through the court, you do need some know-how and the attorney has that.
Avoiding the Process of Probate
It is possible to choose not to do the probate process when there is nothing in the decedent’s name alone. When everything is in a joint name, there is no reason to go through the probate process using the will. Everything would automatically pass to the other person as by operation of law, assuming the other person survived. For example, with a husband and wife, if the husband dies and everything is in joint name with the wife, the wife inherits everything just by retrieving a death certificate and would not have to go through the probate process.
Probate deals with assets that are in the sole name of the decedent. If there are a significant number of assets, bank account securities, or a house that is only in the name of the person who died, you cannot avoid going through the probate process. No one is in a position to be able to sell or convert those accounts or assets, and get them into the name of and for the use of the people who are supposed to get them under the terms of the will. But there is no need to probate a will if there is nothing in the name of the decedent alone.
Probate for Same-Sex Spouses
Same-sex marriage became legally recognized in New York in 2011. The probate process does not change whether a couple is same-sex or not or for their children for purposes of probate.
Children of same-sex spouses are treated the same as those of a traditionally married couple. However, a non-biological parent must have formally adopted the child for the child to be considered a child of such a parent for purposes of intestacy.
One important thing that people should know about same-sex spouse probate is to make sure to clarify the identity of the parents. If the child is not biologically related to one or both of the spouses, there should be adoption proceedings and documents to prove who are the legal parents of the child.
In New York as well as the rest the country, an individual is not required to leave any money to a child in a will, however, they are required to leave money to a spouse. Therefore, when this becomes relevant in the event of intestacy, where there is no will, the probate attorney will want to make sure the child can inherit from his or her parents. They must look at the documentation that shows that the child was adopted by one or both of parties of the same-sex couple unless one is the natural parent of that child. Our office is fully aware of the statutory developments and court rulings with regard to same-sex marriage.