The first step is to petition the Surrogate’s Court in the county where your loved one lived or owned property.
The filing must include the will, a certified copy of the death certificate, and a Probate Petition that is signed and notarized.
You will also need to pay a fee to file the petition. It is calculated on a sliding scale based on the value of the estate.
New York law does not set a deadline for petitioning the court, but delaying the process introduces risk.
The court will respond to your petition with letters testamentary, the document that officially appoints the executor and empowers them to act on behalf of the estate.
If the estate has no will, the court will issue letters of administration, which appoints an administrator with the same powers as an executor.
Probate is the legal process that ultimately transfers an estate’s assets to the beneficiaries or heirs who are inheriting them. Each state has its own laws that govern that process, and in some ways, New York is less formidable than others—but it is typically not a speedy process, often taking a year or more.
For instance, hiring a lawyer is not required for probate. And estates valued below $50,000 can pursue an expedited process called a voluntary administration proceeding that can be completed in only a few months.
But probate can be daunting no matter how simplified it is. Getting an understanding what is required of you, especially if you are the executor of the estate, is the key to a successful outcome that’s as quick as possible.
After a loved one dies, the executor must petition the Surrogate’s Court in the county where they lived or owned property.
Every county in New York has at least one Surrogate’s Court. New York County and Kings County (Manhattan and Brooklyn, respectively) each have two, due to the large populations in these New York City boroughs.
In order to start the probate process, the executor must file the will, a certified copy of the death certificate, as well as the Probate Petition (signed and notarized) with the applicable Surrogate’s Court.
In addition to the will and a copy of the death certificate, when you petition the court, you need to include other supporting documents.
Those may include amendments made to the will (if there are any), a list of the names and addresses of all the beneficiaries, and an estimate of the estate worth with a list of the assets that will be part of probate.
Depending on the situation, the petition may also need:
• A Waiver of Process Consent to Probate form. This document is signed by family members, stating that they are not going to contest the will.
• A Kinship Affidavit, which provides more information about the family members, including who has the right to act as administrator.
There will also be a fee to file the petition, and the amount is based on the estate’s value. Estates from $20,000 to $50,000 are charged a $215 fee, for instance, while estates from $50,000 to $100,000 are charged a fee of $280—and it goes up from there.
Unlike some states, New York doesn’t have a deadline for filing the will of a loved one. But while this is the case, waiting too long can create problems for you.
Delays in filing can stall the administering of the estate, and things like bills, mortgages, and other financial responsibilities that need to be taken care of immediately will not be maintained. Such a delay also can result in being penalized by the court. For instance, the court may choose to ignore the will if there was not a legitimate reason for the delayed filing—which extends the probate timeline even more.
Once all the paperwork is filed with the Surrogate’s Court, the executor must wait for the court to issue letters testamentary, which give the executor the right to act on behalf of the estate and take over all legal, financial, and administrative responsibilities.
As for how long it will take to get these documents depends on the court’s schedule, as well as whether the petition was completed correctly.
In some cases, it can take a few weeks, while in other cases, it can take a few months. However, no matter how long it takes, whether the executor is you or someone else, no further actions can be taken toward the probate process until the letters testamentary are received.
If your loved one did not leave a will and therefore no executor was designated, the court will appoint an administrator with letters of administration. Similarly, it empowers that person to handle the estate’s affairs during probate.
Once an executor or administrator is appointed, it is only the beginning, of course. But you are on your way to the ultimate transfer of your loved one’s assets to their heirs. If you are the executor or administrator, you are living up to a solemn responsibility for the person who died as well as the loved ones they left behind ●
Probate is often a long and complex process, but it is also completely manageable if you stay organized and follow the instructions of the court. It’s definitely still a good idea to avoid the full probate process, if you can. We’ll walk you through whichever scenario applies to your loved one’s estate.