The Probate Process

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 $50,000 or more, if assets are less than $50,000.00 a simple small estate probate can be completed, unless the decedent died leaving Real Property.  

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.