FAQ

You are not required to have a Will. If a person dies without a Will, assets that are titled in the person's name alone and do not have a valid beneficiary designation are distributable to the decedent's next of kin pursuant to intestacy laws. A Will provides directions for the post-death distribution of a person's estate and avoids leaving this process to be controlled by statutory intestacy directions.

An Executor/Executrix is a person designated in a Last Will to be in charge of all of the affairs of the decedent's estate. The named Executor/Executrix seeks to probate the Will, collects all estate assets, pays estate bills and expenses, and makes distributions according to the terms of the Will. The Executor/Executrix has authority to act when the Court approves their appointment and issues Letters Testamentary.

An Administrator/Administratrix is a person who is like an Executor/Executrix, but is appointed when a person dies intestate (without a Last Will). The Administrator/Administratrix’s job is to handle all of the affairs of an estate. When a person dies intestate, New York law provides a list of persons who have priority to be appointed as Administrator/Administratrix such as a surviving spouse, or a child of the decedent. In some instances, there may be a requirement that the Administrator obtain a surety bond before the Court issues an appointment.

Probate or probating a Will is the process by which a Will is submitted to the Court for validation. After a person dies, the document that is denominated as the person's Will must be officially authenticated by the Surrogate's Court. The probate process can be complicated and requires the filing of many different papers in support of the Will. These can include kinship information and attesting witness affidavits. Will Contests can be a part of the probate proceeding.

An administration proceeding is the process by which an Administrator/Administratrix is appointed to handle estate affairs. When a person dies intestate (without a Will) an administration proceeding is needed to appoint the estate fiduciary. To obtain the appointment of an Administrator/Administratrix, a number of documents need to be provided to the Court, including affidavits of kinship and a statement regarding the debts and liabilities and assets of the estate.

An intestate estate or intestacy means that a person died without leaving a Last Will.

If a person dies without a Will, his distributees or next of kin inherit the estate. Distributees who have a right to inherit are determined according to the New York estate laws. Typically, a surviving spouse and children have priority. If none of these persons are surviving then the decedent's parents and then brothers and sisters inherit. The statute has further provisions for more distant heirs.

When a person's next of kin or distributees cannot be fully ascertained or are distant in nature such as cousins, the Surrogate's Court holds a hearing to determine the rightful heirs. Kinship hearings can be complicated and involve the presentation of birth records, marriage records and other heirship documents. Very often professional genealogists are hired to search for missing heirs. The Surrogate's Court requires the presentation of all of these kinship documents and witness testimony to determine who should inherit an estate.

A fiduciary bond or a surety bond is like an insurance policy that is issued by a bonding or surety company that insures that the estate assets will be properly secured and paid. If the fiduciary mishandles or misappropriates estate funds, the bonding company may need to pay for the damages incurred.

A Will Contest is a proceeding in the Surrogate's Court in which the validity of a Will being offered for probate is challenged. The basic grounds for Objecting to a Will are (1) Lack of Due Execution, (2) Lack of Testamentary Capacity, (3) Undue Influence, and (4) Fraud. Proving the validity of a Will can be facilitated where the Will is drafted by an attorney and the attorney supervises its execution. The decedent's distributees are given notice regarding the probate proceeding. This notice is called a Citation. These individuals have the right to file Objections to the Will.

A fiduciary accounting is an account that an Executor or Administrator prepares showing all of the assets and income collected and the payments and expenses made and all other financial transactions during estate administration. The accounting is provided to the estate beneficiaries for their approval.

When a fiduciary file an Accounting with the Surrogate's Court for judicial approval, an interested party has the right to file Objections to the Accounting and examine the Fiduciary. Objections vary but typically relate to have a fiduciary handled various assets.

When a fiduciary act(s) or fail(s) to act in a manner that is not in accordance with his fiduciary responsibilities. The Surrogate's Court can remove the fiduciary from his office or hold him liable for monetary damages.

Parties interested in an estate are entitled to receive an Accounting from the fiduciary. If the fiduciary refuses or delays in providing this information, the party can file a Compulsory Accounting Proceeding in the Surrogate's Court. In this proceeding the Court will direct that the fiduciary file a full Account with the Court and the interested parties will be able to review all of the financial transactions that occurred during estate administration.

The law in New York provides that a surviving spouse of a decedent has the right to receive a share of a decedent's estate provided the surviving spouse files a Notice of Election with the Surrogate's Court to preserve these rights.