Jan 1, 2022 The New York Probate Process When the Deceased Has No Will
Posted in Probate NY by Ariel Rosenzveig
In New York State (“NYS”), the Surrogate’s Court determines what happens to an individual’s (the decedent) property (the estate) when they die. The judge in Surrogate’s Court is known as the Surrogate. Each of NYS’s 62 counties has a Surrogate, and two of these counties, New York County and Kings County, have two Surrogates each. Surrogates in NYS are typically elected to 10-year terms, with the Surrogates in the five counties of New York City elected to 14-year terms.
When a person dies and leaves a will, he or she is said to die testate. Intestacy is the term used for when an individual dies without leaving a will.
If a person dies with a will, the proceeding filed is called probate, and the property is divided according to the will.
On the other hand, if a person dies intestate, then the proceeding filed is known as an intestate estate administration When this happens, the deceased’s property is distributed according to New York intestacy statute.
There’s a rule for who can petition the Surrogate to be appointed as the administrator of an intestate estate. Typically, the closest family member can file for administration of the estate. The statute provides that he deceased’s spouse has a prior right to file over the decedent’s children. If the decedent didn’t have a living spouse, his or her children have equal rights to each other.
Who are the Distributees?
The family members who entitled to a share of the estate when there is no will are known as distributees. This is determined by the surviving family. New York Estates, Powers and Trusts Law (EPTL) §1-2.5 defines a distributee as a “person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.”
EPTL §4-1.1 sets out the rules for the descent and distribution of a decedent’s intestate estate. When someone dies without a will, who gets what depends on his or her living relatives and their degree of relationship to the deceased (for example, a child versus a cousin).
It is necessary to file a petition with the court. A petition is the pleading required to commence a proceeding in surrogate’s court (more on this below).
| If the decedent is survived by: | then: |
|---|---|
| a spouse (husband or wife) and no children, | the spouse inherits everything. |
| children but no spouse, | The children inherit everything in equal shares |
| a spouse and children, | the spouse inherits the first $50,000 plus half of the balance. The children* inherit everything else. |
| parents but no spouse and no children, | the parents inherit everything in equal shares |
| siblings (brothers or sisters) but no spouse, children, or parents, | the siblings inherit everything in equal shares |
Note that if a child dies before the decedent and had children of their own (the decedent’s grandchildren, the grandchildren would step into the decedent’s child’s place and inherit the child’s share.
Who Can Petition For Letters of Administration?
Letters of Administration (“Letters”) are documents issued by the Surrogate’s Court in the county where the decedent lived at the time of his death that permit an individual — known as the “administrator”— to manage or distribute the assets of the deceased who died intestate.
Letters are obtained by filing a petition and other documents with the Surrogate’s.
Will I get a Notice of Administration of the Estate?
The petitioner for an intestate estate administration will file, a certified copy of the deceased’s death certificate, along with the Petition for Letters of Administration and other supporting documents in the Surrogate’s Court in the county where the decedent last lived. The decedent’s distributees must also be listed in the petition and must be served with a notice, known as a citation.
Does the Closest Family Member have to Administer a Relative’s Estate?
No, it’s not required. If a relative with priority by law doesn’t want to administer the estate, he or she can sign a renunciation and waiver, and can even designate someone else as estate administrator, for the Surrogate’s consideration and approval. Also, in the alternative, the petitioner can explain by affidavit why said relative is unable or unqualified to administer the deceased’s estate. This doesn’t mean that the relative with priority by law forfeits their share of the decedent’s estate by not administering it — they’re just saying they don’t want to be in charge of administration.
Contact an Experienced New York Estate Planning Law Firm
Contact the law firm of Ely J. Rosenzveig and Associates, P.C. Email us at [emailprotected] or call (914) 816-2900 to discuss how we can help you create or update your comprehensive estate plan, or help you with your probate or intestate estate administration, tax, and litigation needs. Our firm’s principal partner, Ely J. Rosenzveig, has over 35 years of estate planning, and estate administration experience.
