New York Probate Guide

The New York Probate Guide was created to help those who are in probate and proving a will reflects the wishes of the deceased. If you’re administering an estate, this guide provides the information you need to ensure your interests are protected. Contact our Buffalo estate planning lawyers to learn more.

What is Probate?

New York Probate GuideProbate is the process of proving that the will of a deceased person (testator) is in fact his or her will and reflects his or her wishes. The purpose of probate is to prove the validity of the will and appoint the executor who will administer the estate.

A will is not operative until it is admitted to probate by the Surrogate’s Court. Admission to probate requires establishing, upon due notice to all required persons, that:

  • The will is the will of the decedent
  • That it has been signed and witnessed and otherwise executed as required by law
  • That at the time of its execution the decedent was of sound mind
  • That the will is genuine, i.e. nor a forgery, or a document that the decedent or witnesses signed thinking it was something else.

When the court is satisfied that the document meets those conditions, the will is effective for all purposes, including the transfer of the title to real property. The execution of a subsequent will revokes any earlier will. Until such admission to probate, the will has no force and effect and the named executor has not authority.

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What Are Probate Assets?

New York Probate assets are any assets that are owned solely by the decedent, including the following:

  • Real property that is titled solely in the decedent’s name or held by tenants in common (not joint tenants with rights of survivorship).
  • Personal property, such as jewelry and furniture.
  • Bank accounts, boats, and automobiles that are solely in the decedent’s name.
  • An interest in a partnership, corporation, or limited liability company held in the decedent’s name.
  • Any life insurance policy or brokerage account that lists either the decedent or the decedent’s estate as the beneficiary.

Where is the will probated?

A will is probated in the Surrogate Court of the county where the deceased lived at the time of death.

How much are filing fees?

The Surrogate Court charges fees for probating a will according to the following statutory fee schedule which is based on the value of the probate estate:

Size of the Estate – Fee
Less than $10,000  – $45
At least $10,000 but under $20,000 – $75
At least $20,000 but under $50,000 – $215
At least $50,000 but under $100,000 – $280
$100,000 but under $250,000 – $420
$250,000 but under $500,000 – $625
$500,000 and over – $1,250.00

What are the steps in probating a will?

What are the steps in probating a willThe executor must notify:

  • The distributees – people who would have been entitled to a share in the estate if the decedent had died without writing a will. In New York, this means a surviving spouse and children.
  • Persons adversely affected by the will – for example, beneficiaries named in an earlier will that this new will has replaced.

The court reviews the following documents:

  • Original will.
  • Petition for a decree of probate and appointment of an executor.
  • Death certificate.
  • Affidavits of attesting witnesses to the will signing.
  • Waivers from heirs.

The Court issues a decree for probate and letters testamentary, the official decree of the Surrogate Court giving authority and appointment to the executor to carry out his or her duties. Local court rules may require additional documents.

Is owning my home jointly with my wife a substitute for having a will?
No.  If you and your spouse bought your home together, she automatically gets ownership of it upon your death.  But what if you both die together?  The home that you worked so hard for might be sold and the proceeds controlled by a stranger until your children reach the age of 18, at which time they could spend the proceeds as they wish.
A person’s major assets are usually the home.  With inflation rapidly driving up home values and life insurance covering the mortgage, many homeowners have a much larger estate than they may think.

What happens if I die without a will?
Dying without a will may result in your estate going to someone you didn’t intend to receive it, unnecessary estate taxes, delays in settling the estate, added estate expenses, and leaving your estate assets without proper management and protection.

If you die without a will, state intestacy laws – laws governing the estates of those who die without a last will and testament – determine the distribution of your property. In New York, if you die leaving a spouse and children, your spouse receives $50,000 and one-half of the estate and your children receive the balance. The New York intestacy laws prioritize the distribution of assets as follows:

  • If survived only by spouse (no children or parents), everything goes to the spouse.
  • If survived by spouse and parent or parents (no children or grandchildren, great-grandchildren, etc.), everything goes to the spouse.
  • If survived by spouse and any children (or grandchildren of deceased children), the spouse gets $50,000 off the top, and the remainder is split 50/50 between the spouse and children or grandchildren.
  • If no spouse, children, or parents survive, then the entire estate goes to grandchildren and further descendants.
  • If there are no descendants as in (4), then the estate goes to brothers or sisters or their issue.
  • If there are no surviving siblings of the decedent or children of siblings, the estate goes to more remote family relations extending out to first cousins once removed (sometimes referred to as “laughing heirs” as they would inherit assets not having ever known the decedent).

Adopted children and illegitimate children of the decedent have the same rights as biological and legitimate children (although illegitimate children only have inheritance rights from a deceased father if they prove paternity).

What does a will do?
A properly drawn will is the only way to be sure that your property at your death goes where you want it to go.  By executing a will, you may dispose of real estate and personal property at your death in the proportions and to the persons you wish; appoint competent and trustworthy executors, trustees, and children’s guardians; and create trusts.
If you will be leaving large sums of money to your minor children, the will should provide for a trust with a trustee who can provide proper money management until your child reaches the age of 18 or older.  Making a will is a privilege and if it is not executed in strict compliance with state law, it may be declared to be invalid and your property will pass as if you had no will.

Can I disinherit my children or my spouse?
You can disinherit your children but not your spouse.  Unless you and your spouse have signed a prenuptial or postnuptial agreement, your spouse has a right to either $50,000 or one-third of the value of your estate – whichever is greater. This is known as the right of election.

When should I update my will?

When should I update my willThe following events may require you to update your will so that it is coordinated with your other estate planning documents and non-probate assets. This will ensure that your wishes are carried out.

  • There is a major change in your assets or financial status, such as the purchase or sale of real estate.
  • You adopt a child or pet or a new child or grandchild is born.
  • A fiduciary, named in your will, such as the executor, trustee, custodian, or guardian has died, moved, been convicted of a felony, or become incapacitated.
    Your spouse dies.
  • You get married (this creates a whole new set of gift, Medicaid, and estate tax planning opportunities).
  • You get divorced which necessitates removal of your ex-spouse as a beneficiary and fiduciary and an update of the beneficiary designations in life insurance and retirement plans, including IRAs and 401(k)s.
  • You start, purchase, or sell a business.
  • You move to another state.
  • A will beneficiary or fiduciary marries or divorces – for example, if a couple named as co-guardians or trustees for your children get divorced.
  • Estate, gift or income tax laws change.
  • A will beneficiary becomes disabled or goes on Medicaid or SSI. Add a Supplemental Needs Trust which enables the disabled beneficiary to maintain eligibility for government benefits, primarily Medicaid and SSI.
  • You create a Living (Intervivos) Trust.
  • You open joint or payable on death bank or stock accounts.
  • Your children reach the age of 18.
  • Your beneficiaries have judgments against them.
  • You wish to add a favorite charity as a will beneficiary.
  • You purchase life insurance.
  • You have lent money to a relative.
  • Family conflict results in you disinheriting a child. (You should add an interrorem or no contest clause to your will.)
  • You have made gifts, such as transferring your home with a life estate deed.
  • You wish to leave a specific item, such as a motorcycle, real estate, guns, digital assets, or jewelry, to a certain individual. (Leave a list of your login IDs and passwords for access to financial accounts, social media and email.)
  • It has been many years since your will was last prepared.

Are oral or handwritten New York wills valid?
Yes, under certain circumstances, a Surrogate Court will consider oral or handwritten wills to be valid, but the cost saving of an attorney’s fee may not be worth the risk of having your will invalidated.
A will is nuncupative when it is unwritten, and the making thereof by the testator and its provisions are clearly established by at least two witnesses.
A will is holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the normal formalities.
A nuncupative or holographic will is valid only if made by:

  • A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged.
  • A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict.
  • A mariner while at sea.

Such a will becomes invalid if made by:

  • a member of the armed forces, upon the expiration of one year following his discharge from the armed forces;
  • a person who serves with or accompanies an armed force engaged in actual military or naval service, upon the expiration of one year from the time he has ceased serving with or accompanying such armed force; or
  • a mariner while at sea, upon the expiration of three years from the time such will was made.

If any person described above lacks testamentary capacity at the expiration of the time limited for the validity of his or her will, the will shall continue to be valid until the expiration of one year from the time such person regains testamentary capacity.

What is a codicil?
A later amendment to a will is called a codicil and must be signed with the same formalities as a will.

What is a joint will, and why aren’t they used?
A joint will, also known as a mutual will, is a single for both spouses, which continues to be a valid document for the surviving spouse after the other spouse dies. New York State law allows for joint wills, so long as both spouses sign with witnesses and under the conditions that apply to normal wills.
The problem with joint wills is the lasting, binding effect upon the surviving spouse. Consider a scenario in which two spouses properly make a joint will. One spouse later passes away and the surviving spouse remarries. The surviving spouse cannot thereafter execute a new will.
This situation occurred in the case of Glass v. Battista. After the first spouse died, the surviving spouse remarried, and thereafter executed a new will which disinherited his daughters from his first marriage, in contradiction to the joint will. The New York Court of Appeals held that the new will was in violation of a valid agreement to dispose of the property and refused to honor the new will.
Many people who execute a will are happily married and do not believe that such a situation would affect them. However, it is important to remember a will is intended to make provisions for unseen future events. Executing a joint will is inadvisable because it limits the options available to clients in the future.

When is probate not necessary?

When is probate not necessaryProbate is not required for all estates, such as in these situations:

  • Family Exemption: Under New York law, the surviving spouse and dependent children are entitled to receive certain assets and funds before any estate proceeding (“family exemption”). For example, a spouse is entitled to receive cash of $25,000 before any estate proceeding must commence. Under New York law, a spouse is also entitled to claim one motor vehicle with a value of $25,000 or less without resort to probate. The Department of Motor Vehicles will require on the death certificate and title in order to complete the transfer.
  • Voluntary Administration/Small Estate Proceeding: If the assets of the estate are below $30,000 (after the Family Exemption amounts) and if the decedent owns no real estate, the estate may be administered using a small estate proceeding. The small estate proceeding is a simplified and less expensive process which does not require the filing of a petition for probate.
  • Non-probate assets: All other assets are non-probate assets.
  • Insufficient Assets to Pay Debts: If estate debts and administration costs exceed the value of the estate assets, it may not be advisable to proceed with probate. The filing of the petition for probate will require the Executor to pay all creditors and do a judicial settlement of the estate

What is a testator?
A testator (or testatrix for a female) is a person who has written and executed a last will and testament that is in effect at the time of his/her death.

What is a will contest objectant?
An objectant is one who files objections to the probate of a propounded will.

What is a New York SCPA 1404 Hearing?
Any party to the proceeding, before or after filing objections to the probate of the will, may examine any or all of the attesting witnesses and the person who prepared the will. If the will contains a provision designed to prevent a disposition or distribution from taking effect in case the will, or any part thereof, is contested, an objectant may also examine the nominated executors in the will and the proponents and any person whose examination the court determines may provide information with respect to the validity of the will.

What are the grounds for contesting a New York will?
In New York State, a person can contest a will only on certain grounds. The objectant can claim that:

  • The will was improperly executed.
  • The decedent was mentally or physically incapable of writing a will.
  • Someone exercised undue influence over the decedent while he or she was writing the will.
  • The will is a fraud, and/or the decedent or witnesses did not know what they were signing.

How does a will objectant prove lack of due execution?
A claim that the will was never “properly executed” is an allegation that the testator did not declare the will to be his and did not request at least two witnesses to sign the will. Attorneys routinely lead their clients through the will execution formalities to ensure that these requirements are satisfied, qualifying the document as last will and testament entitled to be admitted to probate.  However, such publication and instruction of a request is not required to be in any “ironclad ceremonial or ritualistic language.”

How does a will objectant prove lack of testamentary capacity?
The capacity requirement to execute a will is a minimal standard; it is lower than the requirement for other legal documents.
Three factors determine “capacity”:

  • Whether the decedent understood the nature and consequences of executing a will.
  • Whether the decedent knew the nature and extent of the property he or she was disposing of.
  • Whether the decedent knew those who would be the natural objects of his or her bounty.

The proponent of the will bears the burden to prove testamentary capacity at trial. Once a proponent makes a prima facie case for New York probate, the burden switches to the objectant to show a triable issue of fact.
There is a presumption of testamentary capacity when a will is drafted and the execution is supervised by an attorney, particularly when the evidence indicates that the testator executed the will only after careful review and discussion of its contents.

How does a will objectant prove undue influence?
An objectant seeking to prove undue influence must prove three elements: motive, opportunity, and actual acts of undue influence, including the time and place of the occurrence.
The objectant must demonstrate that the influence amounted to a moral coercion, which restrained independent action and destroyed free agency or which, by importunity the testator could not resist, constrained the testator to do that which was against his or her free will and desire.

What is Duress?

Duress is that which prevents the testator from exercising his or her intent, generally by the use of force or the threat of harm. It does not depend upon the motive of the wrongdoer, but rather upon the subjective fears of the testator. Often the objectant can prove duress by offering evidence of a wrongful act of violence and/or the menace or the threat that the act would be repeated.
Duress differs from undue influence in that duress involves more of a threat or performance of a wrongful act that coerced the testator, rather than importunity, which need not be violent or carry the threat of violence. The basis for a finding of duress may be due primarily to physical violence that the estate beneficiary had displayed and the possible fear by the decedent that such violence would re-occur if he or she changed the will.

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