Probate
- When a Person Dies with a Will

When a person dies, who inherits depends on whether there is a Will and who the living relatives are and their relationship to the person who died.

When a person dies, who inherits depends on whether there is a Will and who the living relatives are and their relationship to the person who died. When the person who died (the Decedent) had a Will then the Will must be filed in Surrogate's Court and admitted (approved) for probate. Probate is the process of proving that the Will is valid (legally acceptable). During probate, the Will must be proved to the satisfaction of the Court that it's the Last Will and Testament of the person who died. Once the Judge in Surrogate's Court, who is called the Surrogate, is convinced that the Will is legally acceptable, the Executor named in the Will is appointed to give out the estate (everything of value) that belonged to the person who died and carry out the wishes of the person who died. The Surrogate's Court oversees this process.

If the Decedent died without a Will, then an administration proceeding should be filed. If the Decedent had less than $50,000 of personal property with a Will or without a Will, then a small estate, also called a Voluntary Administration proceeding, can be filed instead.

 

Filing for Probate

The Executor files the original Will and a certified death certificate, a document that has the date and location of a person’s death, along with a form called a probate petition and other supporting documents in the Surrogate's Court in the county where the person who died lived, and 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 family members entitled to a share of the deceased person’s property are called distributees. The Decedent's distributees (heirs who are entitled to a share of the deceased person’s property) must also be listed in the probate petition. Distributees must be served with a notice, called a citation. The citation gives the Surrogate's Court jurisdiction over them. This means that the Surrogate's Court has the power to decide the rights of the people involved. A citation tells the distributee that the Executor filed for the legal right to manage the Decedent's estate. The distributee can sign a waiver (giving up their rights) 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 (officially informed) of the probate proceeding.

The filing fee is based on the dollar value of the estate.

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