In New York State, the process of probate is entered into when a person dies (the descendent) and leaves behind probate assets. Probate assets are those owned solely by the descendent and which a beneficiary designation was not made to automatically transfer ownership to an heir at the time of passing.
If the descendent established a comprehensive will, an heir is likely to have been selected to receive these assets. In these cases, the executor of the estate (the person designated to manage the estate of the descendent), must file documentation with the Surrogate’s Court in the county of the primary residence of the descendent. The Court will verify the will and approve the distribution of the estate.
If the descendent died without a will, then an administration proceeding must be filed. Generally, the person who is the closest heir to the descendent, dictated by New York Law, must file for administration. During this process, an administrator is appointed.
Executor, Administrator, or Voluntary Administrator Duties
When a loved one passes away, it becomes the responsibility of an heir or trusted advisor to distribute the estate of the descendent. The title of this heir or trusted advisor depends on the legal proceedings required to settle the estate.
Executor. When a person establishes a will, they will designate an Executor as part of this process.
Administrator. When a person passes away without a will, generally the closest heir to the descendent files an administration proceeding and is appointed Administrator of the estate.
Voluntary Administrator. In small estate proceedings—generally where assets total less than $50,000—the court will appoint a Voluntary Administrator, typically the closest heir to the descendent.
In each case, this person has a fiduciary duty to the estate, meaning they have a legal duty to act in good faith and not put their self-interests in front of the interests of the estate. If the descendent died with a will, the fiduciary must distribute assets as instructed by the descendent. In cases of intestate, where the descendent left no will, the fiduciary is responsible to settle the estate according to New York State Law.
An executor, administrator, or voluntary administrator have the same basic responsibilities:
- Identify, collect, and evaluate estate assets.
- Resolve debts and expenses of the descendent.
- Distribute remaining assets as instructed by the will of the descendent or New York State Law.