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Probate

When a Decedent (the person who died) had a Will then the Will must be filed in Surrogate's Court and admitted for probate. If the Decedent died without a Will, then an administration proceeding should be file. If the Decedent had less than $30,000 of personal property with a Will or without a Will, then a small estate, also called a voluntary administration proceeding, can be filed instead.

Probate is the process of proving that the Will is valid. During probate, the Will is proved to the satisfaction of the court that it's the Last Will and Testament of the person who died. Once the Surrogate (the judge in Surrogate's Court) is convinced of the validity of the Will, the Executor named in the Will is appointed to distribute the estate and carry out the wishes of the person who died. The Surrogate's Court oversees this process.

 

Filing for Probate

The Executor files the original Will and a certified copy of the death certificate with the probate petition and other supporting documents in the Surrogate's Court in the county where the Decedent had their primary residence. You may be able to file the papers over the internet using NYSCEF, the New York State Courts Electronic Filing system. Check to see if you can do this on the e-filing County List for your Surrogate's Court.

The Decedent's distributees (heirs) must also be listed in the probate petition. Distributees must be served with a notice, formally called a citation. The citation gives the Surrogate's Court jurisdiction over them. This means that the Surrogate's Court has the authority to determine the rights of the people involved. A citation tells the distributee that the Executor filed for the authority to manage the Decedent's estate. The distributee can sign a waiver and consent to the appointment of the Executor or come to court to disagree with the appointment. Beneficiaries who will inherit something under the will must be notified of the probate proceeding.

The filing fee is based on the size of the estate.

Probate proceedings can be very complicated. In many cases, it might be a good idea to get a lawyer.

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