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Probate (Wills) and Intestacy in New York State

Q: Who will get ownership of my deceased loved one's assets?

Jointly held assets in New York will pass automatically to the surviving joint owner. Other assets may pass to designated beneficiaries. In addition, if a person died with a valid will, his or her individually-owned property will be distributed according to the will.

A person who died without a valid will is said to have died "intestate." In this case, his or her property will be distributed according to the intestacy laws of the state where the deceased resided at the time of his or her death. Generally, a spouse, children, or parents will receive the assets.

Q. My loved one left behind a will. What do I need to do?

The will should name an executor. The executor's job is to collect the assets, pay the deceased's debts, and distribute any remaining assets according to the provisions of the will.

Once the executor has been determined, that person must then file a Petition for Probate and Letters Testamentary. The Petition for Probate and Letters Testamentary must be filed along with the original will and death certificate in the Surrogate's Court. The Petition for Probate and Letters Testamentary lists pertinent information about the deceased and his or her family, and assets. Usually this filing must be done in the Surrogate's Court in the deceased's home county.

Once the Letters Testamentary have been granted, the executor has the authority to proceed with the estate's administration and settlement in accordance with the laws of the State of New York.

Q. What if I know that my loved one left a will, but I cannot find it?

Check with the attorney who prepared it. That attorney may have retained the original, or at least a copy. In certain limited cases, a copy can be probated if the original cannot be found.

Q. Is the executor required to retain the attorney that prepared the decedent's Will?

The executor is not bound to retain the attorney who prepared the decedent's Will. In many instances the attorney draftsman may not concentrate his law practice in the probate, estate and trust fields, and it would behoove the named executor to retain experienced counsel for the probate of the will, and the administration of the estate.

Q. My loved one did not leave behind a will. What do I need to do?

If no will has been left behind, an administrator of the deceased's estate will need to be appointed to disburse the assets of the estate and to pay any outstanding debts (such as taxes, bills, loans). The appointed administrator will be selected in the following order (assuming the potential administrator is competent and is at least 18 years old):

  • surviving spouse;
  • children;
  • grandchildren;
  • parents;
  • brothers or sisters; or
  • any other distributee (heir).

The proposed administrator must file a Petition for Letters of Administration in the appropriate Surrogate's Court along with a death certificate. Similar to the Petition for Probate and Letters Testamentary, this Petition lists pertinent information about the deceased and his or her family, and the decedent's assets and debts.

Once the Letters of Administration have been granted by the Surrogate's Court, the administrator of the estate has the authority to and may begin to administer and settle the estate in accordance with the laws of New York State.

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Mitchell Wilensky - New York Estate Probate Inheritance Attorney: The estate, probate and trust law attorney, New York City, Manhattan, Bronx, Queens, Brooklyn, Nassau, Suffolk, Long Island, Westchester probate & estate attorney, estate administration & settlement lawyer, New York inheritance law & inheritance disputes, estate litigation, contested estates & trusts law office, New York Long Island probate, New York kinship hearings - representing heirs, administering estates and trusts, probating wills attorney, estate tax returns, estate & trust accountings, executors & trustees, or other legal information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer or attorney client relationship. Any results set forth here were dependent on the facts of that case and the results will differ from case to case. Please contact our New York inheritance, probate, trust and estate law office - New York, NY. Attorney Advertising.