Frequently Asked Questions
The Surrogate’s Court is established in every county to hear cases involving the affairs of decedents, including the probate of wills, and the administration of estates and trust proceedings. Family, Supreme, and Surrogate’s Courts have concurrent jurisdiction over guardianships of the person and property of infants. Family and Surrogate’s Courts have concurrent jurisdiction over adoption proceedings.
- Can I handle an estate proceeding without an attorney?
- What are Some Common Proceedings in Surrogate’s Court?
- What is a will?
- What happens if my loved one dies without a will?
- Who may be appointed to handle an estate proceeding?
- I am the Executor of a will. How do I get the will admitted to probate?
- My mother left a very small estate. Is there an easy way for me to proceed?
- My father died and the only asset is his house. Do I have to file a proceeding in Surrogate’s Court to have it turned over to my siblings and to me?
- My mother died in a nursing home. I was told that I must file a proceeding in Surrogate’s Court to obtain the money in her personal account. What proceeding do I file?
- My spouse died in a car accident. I have hired a lawyer to sue the driver of the other car. There are no assets other than the lawsuit. Does a proceeding need to be filed in Surrogate’s Court?
- I am a surviving spouse who does not receive anything under the terms of my deceased husband's/wife's will. What can I do?
- How do I get a copy of a death certificate?
- How do I obtain guardianship (control) over a child and a child's property?
- How can I obtain information about an adoption?
Can I handle an estate proceeding without an attorney?
You are not required to have an attorney, but be aware that estate proceedings can range from the relatively simple to the extremely complex. Because, in many cases, it may be impossible at the beginning of the process to foresee what questions or issues may arise, it may be advisable to seek the assistance of counsel. If you are going to proceed without a lawyer, start by calling the appropriate Surrogate’s Court for information regarding the necessary forms. Please remember that while court staff may provide legal information, they are prohibited by law from giving legal advice. Forms and instructions are also available at www.nycourts.gov/forms/surrogates.
What are Some Common Proceedings in Surrogate’s Court?
Probate: The process by which a will is proved to the satisfaction of the Surrogate (Judge) to be the valid Last Will and Testament of the person who died (decedent).
Administration: A procedure for collecting and distributing assets of a person who died without a will (intestate).
Voluntary Administration (also referred to as small estate administration): A simple and inexpensive method of administering the estate of a deceased person whose personal assets in the decedent’s name alone do not exceed $50,000 (exclusive of certain types of property, the clerk of court can provide more information as to whether you qualify), for persons who died on or after January 1, 2009; or $20,000 for persons who died before then. Voluntary administration may not be used to administer real property.
Trusts: Surrogate’s Court handles the following types of trusts:
• Inter vivos trusts: Created during the settlor’s lifetime.
• Testamentary trusts: Arises upon the death of the testator, usually under his/her will.
Guardianship: The Surrogate’s Court handles the following types of guardianships:
• Guardianship over an infant’s (child under 18 years of age) “person,” and/or “property”: A guardian is usually a family member who is granted authority to care for and make certain decisions for a child (for the “person”). Whenever a child receives money (usually $10,000 or more), someone must be formally appointed by the Court to safeguard these funds until the child becomes 18. Usually, a parent (the child’s “natural guardian”) is the person appointed “legal guardian” over these funds.
• Guardianship over a intellectually or a developmentally disabled individual’s person and/or property: An individual who is certified by at least two doctors (one of which must be a medical doctor; and one of which may be a licensed psychologist) as being unable to care for him/herself because of intellectually or a developmental disability can have a guardian appointed by the Court to make decisions on his/her behalf.
Adoptions: Surrogate’s Court handles the following types of adoptions:
• Infant Adoptions: These are adoptions arranged directly between the parties or with the assistance of a private adoption agency.
• Step/Parent or Remarriage Adoptions: Where the new partner or spouse is adopting with the birth parent or prior adoptive parent (who adopted as a single parent).
• Family Adoptions: These usually refer to grandparent(s) adoptions.
• Adult Adoptions: These are adoptions where the person to be adopted is over the age of 18.
• Foreign Adoptions: All foreign countries are now finalizing adoptions prior to the new parents and child(ren) returning to the U.S. Although it is not mandatory to do a readoption here, adopting parents may wish to consider the benefit of having a U.S. birth certificate issued for their child.
What is a will?
A will is a written declaration of what a person wants done with their property upon death. A person who dies leaving a will is said to die “testate.” The law requires certain formalities for a will to be valid. A valid will can transfer an interest in both personal property (e.g. bank accounts, furniture, stocks, clothing) and real estate. A will allows a person to name a trusted individual to serve as an executor of the estate and guardian over the children. It also can provide protection for family members; for example, trusts for adult incompetent children, or “sprinkling” trusts for minor grandchildren where a trustee has discretion to distribute income according to need.
What happens if my loved one dies without a will?
A person who dies without a will is said to have died “intestate”. Because the deceased person left no direction on how to dispose of their assets, New York law provides for how those assets will be distributed among the surviving members of the decedent’s family. A certified copy of the death certificate needs to be filed with the administration petition and other supporting documents in the Surrogate’s Court located in the county in which the decedent was domiciled (had their primary residence). There will be a filing fee based on the size of the estate. It may be advisable to seek the assistance of counsel.
Who may be appointed to handle an estate proceeding?
If there is a will, the person named as Executor or, if that person is deceased or unable to act, the person named as Successor Executor. If there is no will, a person who qualifies under the laws of intestacy to serve as the Administrator. An Executor or Administrator serves as a fiduciary.
I am the Executor of a will. How do I get the will admitted to probate?
The original will and a certified copy of the death certificate need to be filed with the probate petition and other supporting documents in the Surrogate’s Court located in the county in which the decedent was domiciled (primary residence). There will be a filing fee based on the size of the estate.
My mother left a very small estate. Is there an easy way for me to proceed?
If the value of the estate is under $50,000 (exclusive of certain types of property, the clerk of court can provide more information as to whether you qualify), for a person dying on or after January 1, 2009, and the decedent owned no real estate, a small estate proceeding may be filed. (The amount is $20,000 for persons dying before January 1, 2009.) The filing fee is only $1.00. This proceeding is available for persons who died with or without a will.
You can use the free and easy DIY Forms Small Estate Affidavit program let you keep or give away the property of a relative that passed away.
*DIY (Do-It-Yourself)
My father died and the only asset is his house. Do I have to file a proceeding in Surrogate’s Court to have it turned over to my siblings and to me?
Not necessarily. By operation of law, real property vests in the estate’s distributees at time of death. (Distributees are the persons entitled to share in an estate if there is no valid will.) If your father died intestate (without a will) and was not survived by a spouse, the property is owned by you and your siblings (as well as the children of any predeceased siblings) as of the time of his death. You should contact the appropriate tax office to see what the requirements are to list you as owners. You may also wish to consult a real estate attorney to prepare a deed to make the title to the property "cleaner." If your father died testate (with a will), the property would be passed on in accordance with the terms of the will and a probate proceeding may be necessary.
My mother died in a nursing home. I was told that I must file a proceeding in Surrogate’s Court to obtain the money in her personal account. What proceeding do I file?
If that is the only asset or the value of the total assets are under $50,000 ($20,000.00 for a person dying before January 1, 2009), (exclusive of certain types of property, the clerk of court can provide more information as to whether you qualify), you may file a small estate proceeding. If over the relevant monetary amount, you must file a full administration or probate proceeding.
My spouse died in a car accident. I have hired a lawyer to sue the driver of the other car. There are no assets other than the lawsuit. Does a proceeding need to be filed in Surrogate’s Court?
Yes. A probate proceeding or administration proceeding will be necessary. The Executor or Administrator can bring the action in the appropriate court. When a settlement is reached or a trial has been concluded, a proceeding should be brought in Surrogate’s Court to allocate and distribute the proceeds to the proper persons.
I am a surviving spouse who does not receive anything under the terms of my deceased husband's/wife's will. What can I do?
Generally, a surviving spouse may file a "Right of Election" which would entitle him/her to take a share of the deceased spouse's estate. Generally, this "election" must be made within six months from the date letters testamentary issue to the executor, but in no event later than two years after the decedent's death; and may entitle her/him to the greater of $50,000.00 or one-third of the net estate, if the decedent died on or after September 1, 1992.
How do I get a copy of a death certificate?
The funeral director usually purchases several originals for your use. You may also obtain them from the Vital Statistics/Death Records Department in the municipality in which the person died. In New York City, contact the Department of Health.
How do I obtain guardianship (control) over a child and a child's property?
The Surrogate’s Court can provide forms and assistance on how to fill them out. You will need to file the child's birth certificate and other required information and pay a $20.00 filing fee. Then, an investigation will begin and other procedures will be necessary. Most commonly, these proceedings are processed on the papers submitted to the Court, without the necessity of a formal hearing. However, in some circumstances, the court may require a hearing.
How can I obtain information about an adoption?
The records of all adoptions in New York State are sealed and cannot be obtained, except by court order. Inquire with the Surrogate’s Court (or Family Court, if the adoption was approved there) in the county where you believe the adoption took place. Please be aware that advice and other assistance from an attorney may be needed for success. The Adoption Registry, which is in Albany, allows the adoptive child to receive non-identifying information. It also allows the birth parents the opportunity to register, for the opportunity to be matched with the child, and, with consent from each side, be in contact. The telephone number for the Registry is (518) 474-9600.