In New York State, the process of bringing the affairs of a “decedent” to closure is overseen by the county Surrogate’s Court. Asset distribution is determined by the will, when there is one, and by the laws of intestacy when there is not. In either case, a personal representative of the decedent must follow the protocols of the Surrogate’s Court.
Petitioning for Probate or Administration
A common misunderstanding about the probate process is that it is only applicable when there is no estate plan or will. In fact,upon the death of a loved one, most families at some point find themselves in probate court, or, as it is referred to in New York, the Surrogate’s Court. As Carolyn Williams of Dunlap Bennett & Ludwig explains:
Once a person dies all of their assets become part of what is called their estate. Most New York estate matters are handled by the Surrogate’s Court of the county where the person (now known as the decedent) was a resident at the time of their death. If the decedent has a will, the will needs to go through the probate process. It must be admitted by the court before any of the decedent’s assets can be distributed. If the decedent died without a will or the will is deemed invalid, the assets are distributed pursuant to the intestacy laws of that state. This determines what next of kin is entitled to inherit from the decedent….New York…allows estates smaller than $50,000 to go through a small estate proceeding.
Typically, the probate process is initiated by a personal representative of the decedent, typically a relative or close friend. Williams offers this overview of the protocols in New York:
If the decedent dies with or without a will, the personal representative will need to file either a Petition for Probate or a Petition for Administration with the Surrogate’s Court seeking to be appointed to administer and distribute the decedent’s estate. A copy of the decedent’s death certificate and the original will of the decedent will also need to be provided to the court, if required. The personal representative will either be an executor, if appointed in the will, or an administrator, who is a person appointed by the court to administer the decedent’s estate. The personal representative will be responsible to pay the decedent’s bills and distribute the decedent’s assets to their beneficiaries. Some courts will require the personal representative to post a bond. In the event that the personal representative makes a mistake that costs the estate money, the bond can cover those costs.
Personal Representative Terms and Bonds Explained
Basically, the terms personal representative, administrator and executor all refer to the individual designated to administer an estate. Application of the specific term generally depends on both the circumstances and state protocol. Regardless of the terminology particulars, individuals designated for estate administration have significant duties, and accordingly, are considered fiduciaries: they are legally obligated to protect the interests of the estate and its beneficiaries. Given the responsibilities inherent in estate administration, bonds, referred to as surrogate, probate, administrator, personal representative or executor bonds are often required. Essentially, these fiduciary bonds act as a guarantee that the affairs of the estate will be carried out in good faith and in accordance with the law. Whenever and wherever the court requires a bond, obtain it quickly and easily via Colonial Surety’s online bond service. Our digital bonds include: surrogate, probate, administrator, personal representative and executor bonds.
Understanding Probate Procedures
Though specifics and terms vary somewhat, basic probate proceedings are similar in states across the country: notifications must be made to creditors, beneficiaries and heirs, and claims, including taxes, must be resolved before any assets are distributed. Though probate sounds complex and does require the diligent effort of personal representatives, it generally proceeds smoothly, unless of course litigation emerges.
New York estate planning experts offer this overview of the proceedings a personal representative can anticipate:
The court will issue Letters Testamentary or Letters of Administration to the personal representative. The court will also require that all of the decedent’s beneficiaries, heirs, and creditors are notified of the filing of a petition in court. The decedent’s beneficiaries, heirs and creditors are able to either contest the estate or make a claim against the estate. If there is any dispute or will contest, the court will review any evidence presented. They will then resolve the dispute before any assets can be distributed.
Assume that there is no dispute or all disputes over the decedent’s estate have been resolved. The personal representative will gather the decedent’s assets. This includes all real estate, financial accounts and investments, personal property and cash, and liquidates any assets as needed to pay creditors and distribute the assets to the beneficiaries before closing out the estate.
Once appointed, It’s important for personal representatives to carefully follow all court protocols, which typically culminate with the filing of a closing report confirming that the matters of the estate have been settled. Attorneys remind us that the court must approve the closing of the estate before relieving a personal representative from their duties.
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