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What is probate?

Updated: Feb 10, 2022

scrabble pieces spelling probate

First, a note:

This is the first article of a general and simple view of “probate” and potential surrounding matters within the context of an estate under New York law. Every situation is different, and an attorney should be consulted regarding your specific situation.

What is Probate?

Probate: It can be not “not so bad” or the “worst” - it all depends.

Probate, in a narrow sense, refers to the process of Surrogate’s Court finding a will offered to the Court as the valid last will of a person who has passed (known as a “decedent”). Probate, in a general sense, is often used to refer to the entire process of administering a decedent’s estate.

There is a need to have an estate “opened” in Surrogate’s Court where there are assets in the name of the decedent and/or funds to be received after death and someone with a legal interest desires these assets/monies be used to pay out creditor claims or distributed out, eventually, as appropriate. As well, there could be a need to have an estate “opened” simply to substitute the estate for the decedent in a personal injury action and/or to commence a claim for wrongful death.

Assets/monies to be received after death could include such items as unpaid wages/vacation time, unclaimed airline mileage/reward accounts, funds from accounts of which the estate is named as the beneficiary or is the beneficiary by default, refunds from smaller to larger amounts stemming from many differing sources (for example, taxes, insurance, residential living facilities, etc.), ongoing rights to receive royalties on patents or trademarks, rights to control publicity rights, rights to collect judgments in lawsuits, wrongful death or personal injury proceeds, remainder and reversionary interests, rights to collect funds on promissory notes or outstanding loans, and so on.

There may also be a need for an appointment of a guardian of a minor child and a will may provide for such guardianship nominations which can also play into the need to file the will and prove its’ validity (essentially “opening” an estate).

A fiduciary is the broad term that is also used to describe the person(s) or entity appointed by Surrogate's Court to handle the estate. In the context of a fiduciary of an estate, this means that he/she (or “it” if an entity) has duties of loyalty and impartiality in handling estate matters and must act in the best interest of the estate.

What to do Prior to "Opening an Estate" in Surrogate's Court

Before an estate may be “opened” in Surrogate’s Court, it is typical that funeral and burial arrangements have already been taken care of (one reason why you should only confirm your wishes in a will regarding these matters but have other appropriate documents/plans in place that other appropriate persons/entities are well-aware of prior to your passing that will legally ensure your wishes are handled properly). However, there will be legal responsibilities by the fiduciary of the estate in so far as ensuring the funeral/burial expenses are paid.

As well, before an estate may be “opened” in Surrogate’s Court, it can be important to preserve and protect estate assets, depending on the circumstances, and under the counsel of an attorney. This can be tricky and really needs special attention to avert possible claims of improper action or inaction later down the road, including theft or loss in value in regard to estate assets.

Who is the "Major Figure of the Estate?"

The major figure in administering an estate is the executor if there is a will or the administrator if there is no will. Again, the term “fiduciary” of the estate includes both the term “executor” and the term “administrator” and can be thought of, in the broad sense, of the person owing legal duties to the estate.

The responsibilities of an executor or administrator are, generally, to safeguard and collect a decedent’s assets, pay various taxes, debts, and expenses of the decedent and of the estate, and then finally make distributions, as appropriate. These matters are not to be taken lightly and entail any number of responsibilities.

An executor is nominated in a will and has a right to pursue his/her (or “it” in the case of an entity) formal appointment through Surrogate’s Court after certain qualifications are met and appropriate papers filed with the Court along with the filing fees.

An administrator is a person who has a right, pursuant to New York State law, to be appointed as such where the decedent did not leave a will. (Obviously, this is one main reason to have an updated will so you can nominate the person or entity you desire to act as the executor). The pecking order for possible administrator appointments, in the case of a person who passes without a will, are laid out in New York State statute and must be followed. Of course, certain papers can be filed allowing this pecking order to be maneuvered, if appropriate and desired and with cooperation among the necessary parties. When parties with the same rights, pursuant to this pecking order, cannot agree on who should act as the administrator or co-administrators, it may result in the appointment of the Public Administrator, who will act as a neutral party to administer the estate.

Paperwork Filed with Surrogate's Court Starts the Process

To begin the process of having an executor or an administrator appointed to act on behalf of the estate, certain papers must be prepared, properly executed, and filed with Surrogate’s Court, including an oath and designation executed by the proposed fiduciary along with the filing fees. The paperwork, including supporting papers, in total, that must be filed depend on various factors and, at this initial stage, can prove frustrating. It all depends on the facts and circumstances of the specific matter, including the will or wills found or on file with the Court and related documentation, the decedent’s distributees (a/k/a certain relatives) with a myriad of issues here alone, if there are minors or others involved who are unable to act on their own behalf and various other matters.

The Court must obtain both subject matter jurisdiction over the estate and personal jurisdiction over the necessary parties at this initial stage. This means the Court must be the appropriate court to open an estate based on the decedent’s “domicile” and each necessary party to the proceeding has “appeared” or signed appropriate documents waiving such required appearance. Otherwise, there could be further requirements and/or proceedings, including court appointed “guardian ad litems”, publication requirements and other documentation, along with dealing and resolving further issues due to opposition to the initial papers filed, causing any number of further delays before an executor or administrator can be appointed. There could also be the requirement that a bond be posted in order to protect interested parties, including creditors and beneficiaries, if there is a will, or distributees, if there is no will, depending on the circumstances.

This initial stage can prove more difficult than one might expect and, in such instances, certainly is eye-opening for those who are involved.

Stay tuned for next article on estate administration!

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