When a loved one passes away their family not only deals with the emotional loss, but also the tasks required to assure the proper distribution of assets and payment of bills. Estate administration is the process of managing a person’s affairs after their death. Losing a loved one is devastating and the task of managing their estate can be overwhelming. Daniel Testa will help you navigate the administration process making it as easy as possible for the executor.
When a person passes away leaving assets Probate is the legal process whereby legal ownership of specific assets are distributed to beneficiaries after someone dies. People who have written wills have their assets distributed according to that will. If a person has died without a will, referred to as dying intestate, that person’s property is distributed according to the laws of intestacy.
The Probate Process in New York State
Probate is the legal process which takes place when a person dies leaving a Will. A Will only needs to be probated if the decedent died with assets valued at $30,000 or more, if assets are less than $30,000.00 a simple small estate probate can be completed.
Before the Will has any legal effect, it must be admitted to probate by the Surrogate’s Court located in the county where the person died. A Will that has not been admitted to probate has no effect. Once the will has been probated the Executor will be issued Letters Testamentary giving the executor the ability to act.
A New York Will must be signed in the presence of at least two witnesses and each must sign in the presence of the other in order for the Will to be valid. The person making the will must be competent to do so of his or her own free will, and not under any duress or undue influence.
The probate process is commenced by filing the original Will and a probate petition with the court. After jurisdiction is complete and all issues have been addressed, the court will issue a decree granting probate and issue Letters Testamentary to the Executor or Executors named in the Will. If anyone believes that the Will is not valid, that person may start a Will Contest by filing objections to the probate.
Letters Testamentary is a document which gives the Executor the authority to administer the estate. The Executor will be responsible for identifying and inventorying the decedent’s property, having the property appraised, paying debts and taxes and distributing the property as the Will directs.
Estate Administration FAQs
Do I need to probate my relative’s Will?
The Will is required to be probated only when the decedent died possessing assets valued at $30,000 or greater. This does not include assets for which there are designated beneficiaries (e.g., joint accounts, “in-trust-for” accounts or insurance proceeds not payable to the estate).
Do I need an Attorney to handle my probate matter?
You are not required to hire an attorney to take care of a probate proceeding on your behalf. If you feel comfortable doing so, you may handle a simple probate yourself. However, many probate matters are challenging and you would be better served by having an experienced probate attorney handle your case. Some complications that may arise include difficulty in locating interested parties for jurisdictional purposes, defects in the language of the Will and the potential for someone contesting the Will.
What if my relative died with assets but did not have a will?
If your loved one died without a will (intestate) and there were assets the estate will still need to be administrated. The procedure is referred to as administration by the Surrogate’s Court. Under an administration the estate is distributed under rules of succession. See NYS EPTL § 4-1.1
How long does probate take?
A simple probate may take a few weeks depending upon the Surrogate Court Schedule. With more complex matters probate can be a lengthy process. Testa Law Firm will make sure that the process is completed as quickly as possible.
How much does probate cost?
Generally the cost of Probate in New York State is between 2.5% to 10% of the total value of the gross estate. The main probate costs are the executor’s commission and attorney fees.
Does an executor get paid?
Executing an estate can often be a very time consuming process, the Executor is entitled to a commission as compensation for their time and efforts. An Executor commission is set by New York law. See SCP § 2307. Commissions range from 2-5% depending on the size of the Estate.
New York probate attorney fees are normally the same as the executor’s commission set by New York law, described above, but may vary based on the complexity of each case.
- Testa Law Firm offers multiple fee arrangements depending on the complexity of the estate including Flat Fees, percentage based fees, hourly billing or contingent fees. Your case will be evaluated during your free initial consultation and Testa Law Firm will work with you to set the best fee arrangement for your situation.
- * Flat fee arrangements are reserved for straightforward matters in which the services required can be clearly delineated. If legal work is required that goes beyond what has been agreed upon, the additional services are normally charged at hourly rates. Any work that may go above and beyond a flat fee arrangement will be discussed prior to incurring additional charges.
Are there court costs?
Court filing fees range from $215 to $1,250, depending on the gross value of the estate. Other court costs (such as hiring a process server, purchasing a bond, publication fees, etc.) may cost additional hundreds, or even thousands of dollars.
The probate process includes filing all final income tax returns and possibly estate income tax returns. Tax preparation fees range from a few hundred to over a thousand dollars, depending on the complexity of the return.
Professional appraisals are needed when an estate tax return is required or when the heirs or creditors disagree as to the value of the estate assets. Appraisal fees vary widely depending on the type of property.