Surrogate’s Court Practice
New York Probate Lawyer
Offering Probate Services
Have you lost a loved one and don’t know where to begin in handling the estate? The executor, trustee, or administrator of an estate has the responsibility to navigate the complexities of administering an estate. With more than 30 years of experience, our goal is to guide you through this process with compassion.
What is Probate and when is it necessary?
“Probate” derives from the Latin word “to prove”. Probate is a court process of proving a Will is valid. The Executor named in the Will files a petition with the Surrogate’s Court in the County in which the decedent was domiciled at the time of his death. The Court’s role is to review all of the facts and circumstances relating to the execution of the Will and to admit the decedent’s Will to probate. The Court appoints the Executor named in the Will as the legal representative of the Estate. The notice and consent of all interested parties (as defined by statute) is required in order for the Will to be admitted to probate.
After probate is complete, the Executor must then administer the estate. When the Will is admitted to probate, the court issues a decree and Letters Testamentary. The Letters Testamentary give the Executor authority to act on behalf of the estate. There are many responsibilities the Executor has in this role. He must collect and protect all the property of the estate, review and pay legitimate debts and expenses of the estate, attend to income and estate tax requirements, account for all activity in the estate and finally make distributions according to the Will. This often takes a year or more, depending upon the property in the estate.
What happens if there is no Will?
If a person dies without a Will and has not designated in some other manner how his assets are to be distributed, the laws of the State in which he is domiciled at the time of his death will determine who is to receive his assets and, in effect such laws “write” the Will for the decedent. In the State of New York, the laws provide as follows:
• If there is a surviving spouse and one or more children, the spouse will receive the sum of $50,000 plus one-half of the balance of the Estate. The remainder will pass to the children or their issue.
• If the decedent is survived by a spouse but no children, the entire estate passes to the spouse.
• If there are one or more children but no spouse the entire estate will go to the children.
In other words, if a person dies without a Will (“Intestate”), not all of his assets will pass to his spouse. Instead, the estate will be split between his spouse and his children in accordance with the laws of the State of New York. In addition, this situation will create the following problems. If there are minor or disabled adult children and/or other heirs, any assets which are payable to them will be deposited into a Court-directed account and will be subject to the jurisdiction of the Court as to when and if the minor can have access to the money. In addition, a minor would automatically receive his share upon reaching 18.
At the Law Office of Audra E Dehan, we provide compassionate personal support to our clients and their families during the difficult time after death. Our firm is marked by more than 25 years of experience in the probate, settlement and administration of estates. We handle all aspects of estate and gift tax issues, post mortem estate planning and the various challenges faced by families in grief. In addition to probate, our Surrogate’s Court practice includes intestate administration, accounting, ancillary and guardianship proceedings within all boroughs of New York City, Westchester, Nassau and Suffolk counties.