NEW YORK PROBATE & ESTATE ATTORNEY
When a loved one passes away, there are practical matters to take care of. I can help.
When someone dies, the property they have left behind is called their estate. This property must be passed on to those entitled to it.
When the person who has died has made a will, the process is called probate. If a person dies without a will, the process is called administration.
Either way, the process can be overwhelming to those who have just suffered a loss. This is where I can help.
When a person dies who has made a will, the will must be probated. This is called “proving” the will. The named executor must submit the original will to the court, along with an original death certificate, and a petition listing the deceased persons’ relatives and estimating the size of his or her estate. This is called a petition for probate. Notice of the petition must be given to everyone who inherits under the will, as well as to those who would inherit if the deceased had not left a will. This gives them an opportunity to be heard if they object to the will.
The court then decides whether the will is valid. Most wills are. In modern times, it is customary to attach an affidavit to the will, in which the witnesses swear to their signatures and to the circumstances of the will’s signing. A will that has such an affidavit is called a “self-proving” will.
Occasionally, older wills may not have such an affidavit attached. In that case, it is necessary to find the witnesses to the will, if they are still alive and can be located. They must testify to, or provide an affidavit for, the signing of the will. If witnesses are no longer alive or cannot be found, further proceedings are necessary.
Once the will is proved, the court issues “letters testamentary” to the executor. These give the executor the authority to collect and preserve the assets of the deceased. Usually an estate account is opened, and the assets transferred to it. Assets such as personal property or real estate may also need to be transferred.
The executor pays any debts of the deceased out of the estate assets. The executor then files an inventory of the estate with the court. A final tax return must be filed for the person who has died. The estate may also have to file a return.
Finally, the executor prepares an account, and once it is settled, can then distribute the assets to those entitled to them. It is good practice to obtain a release from each heir, acknowledging receipt of their share of the assets, and releasing the executor from further responsibility.
An experienced New York State probate and estate lawyer can help at each step of the process. If you have been named executor in the will of a person who has died, call right away.
Dealing with the property of a person who has died without a will is called administration. The court appoints a person, usually a relative of the deceased, as the administrator. As with probate, a person who wishes to administer the estate files a petition with the court, which then grants letters of administration.
Letters of administration are similar to letters testamentary, which are granted in the case of a person who has left a will. The letters give the administrator the authority to gather and distribute the assets of the deceased. The remainder of the process is much the same as with probate (see above).