Probate is the process of having a deceased person’s Last Will and Testament validated by the local Surrogate’s Court. If a person dies without having a last Will and Testament, this person is said to have died “intestate.” For people who die intestate, the process of having someone appointed to control the Estate is known as an Administration Petition.
In order to have a deceased person’s Last Will and Testament validated by the local Surrogate’s Court, several steps must be taken, and this is why it’s usually a good idea to get a knowledgeable Trusts & Estates attorney involved at the outset. The first step in the probate process is locating a deceased person’s original Last Will and Testament. After the original Last Will and Testament is located, the Last Will and Testament must be reviewed to determine who the nominated Executor is. If the nominated Executor is anyone other than the person who located the Will, the Will should be provided to the nominated Executor or an experienced Trusts & Estates attorney immediately. The nominated Executor is the person responsible for having the Will admitted to probate, among other things, so it’s crucial that this person be given the original Last Will and Testament. After the nominated Executor has the original Last Will and Testament, the nominated Executor must then secure an original death certificate for the deceased person. Using the information contained in the Last Will and Testament and the death certificate, the nominated Executor must then complete a Probate Petition. A Probate Petition is the document which formally asks the Jude of the Surrogate’s Court to validate the Will and admit it to probate. After completing the Probate Petition, the nominated Executor then files the original Probate Petition, death certificate and Last Will and Testament with the Surrogate’s Court, along with a required Court filing fee, and the Probate proceeding has officially begun.
In many instances, a Probate proceeding can be a rather simple affair – after the nominated Executor files the documents indicated above, the Court’s file is submitted to the Judge for review and approval. If probate is approved, the nominated Executor is then formally appointed as Executor of the Estate and the Surrogate’s Court issues Letters Testamentary to the Executor to confirm his/her authority to collect Estate assets, pay Estate debts and make distributions as spelled out in the Will (a process known as Estate Administration). If, however, any of the deceased person’s heirs-at-law, in New York known as the deceased person’s Distributees, objects to the Last Will and Testament being admitted to probate, then the Probate proceeding is marked as contested, and Estate Litigation/Will Contest ensues.
Unlike Probate, when someone dies not having a Last Will and Testament, anybody who is an heir-at-law, or distributee, of the deceased person can ask the Surrogate’s Court to appoint them as Administrator of the Estate. Like an Executor, the Administrator is charged with the responsibility for collecting Estate assets, paying Estate debts and making distributions to the decedent’s heirs-at-law, or distributees, in accordance with New York Law.
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Anyone wishing to become the Administrator of a deceased person’s estate should contact an attorney knowledgeable in Trusts & Estates because the process can be somewhat complicated. The person seeking to be Administrator must obtain an original death certificate for the deceased person, a copy of the deceased person’s funeral home receipt, which must be marked “paid”, and must complete an Administrator Petition, by with he/she formally asks the Court to appoint him/her as Administrator of the Estate. Once these documents are obtained, they are filed with Surrogate’s Court, along with a required filing fee, and the Court will review these documents and determine if the person petitioning to be Administrator of the Estate is suitable and has priority to act as Administrator pursuant to New York Law. If the above conditions are satisfied, then the person petitioning is formally appointed Administrator of the Estate and he/she can then begin to act. If, however, the above conditions are not met or if another heir-at-law/distributee raises objection to the appointment, then the matter is marked contested and Estate Litigation beings, which will determine who should be the Administrator of the Estate.