What Is the Probate Process in New York State?

It is a common misconception that a Last Will and Testament (“Will”) automatically goes into effect upon a testator’s death (the person who executed the Will). In reality, a Will must first go through the probate process, and the Executor named in the Will must receive court approval to act in his or her capacity as Executor.

Probate is the legal process by which a decedent’s Will is determined to be valid. The term “probate” can also refer to the entire process by which a decedent’s estate is administered and settled under court supervision. In New York State, the Surrogate’s Court oversees the probate process and ensures that estates are administered in accordance with a decedent’s wishes and state law.

The first step in the probate process is to determine whether probate is necessary. If a decedent’s estate is valued at less than $50,000 (excluding real property), a streamlined process called “voluntary administration” may be utilized in the place of probate. Probate can also be avoided by using certain estate planning techniques or vehicles other than a Will during a decedent’s lifetime.

If probate is required, the Executor named in a decedent’s Will must petition for probate in the county where the decedent resided at his or her date of death. Once the Court is satisfied that the Will is valid and has ensured that all necessary parties have been provided notice of the proceeding, the Court will issue a decree granting probate and the Executor will be issued Letters Testamentary. Letters Testamentary provide the Executor with authority to administer the decedent’s estate.

Estate administration includes obtaining an employer identification number (“EIN”) for the estate, opening a bank account for the estate, collecting assets, paying debts or expenses of the decedent and estate, filing tax returns, and making final distributions to beneficiaries.

The probate process can be complex, nuanced and can vary by estate depending on the facts. Seeking the expertise of an estate attorney can help ensure proper and efficient administration of an estate.