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New York Probate FAQ

What is Probate?

Probate in New York refers to the process where the State of New York recognizes the executor or administrator as the estate’s official representative. When someone dies, ownership of all assets in that person’s name will now pass to someone else. The Probate process provides the rules and oversight of that process. For a New York estate, the initial step is to have the will recognized as valid by the Surrogate’s Court of the county where the deceased was a resident. For example, if the deceased was a resident of Long Island, New York, the will is filed with the Suffolk County Surrogate’s Court. If there is no will, then the process begins with the selection of the person who will serve as the Administrator of the estate. If the petition is approved for probate, then paperwork is given to the executor or administrator authorizing them to represent the estate. Probate has begun.

Where do I Probate the New York Will?

The will is registered with the Surrogate Court of the county that the deceased was a resident.

What if I am an Executor but I Don’t Live in New York?

Our experienced Probate teams can make arrangements for you to be sworn in as executor outside of New York. In most cases, we can make arrangements so that you will never have to come to New York at all. Because we focus our practice on Probate matters, we can help make the probate process as easy for you as possible.

How Long Does Probate Take?

There is no set time limit for an estate’s probate. As explained below, I often tell executors to tell the heirs that the estate will be open for at least a year, but we can often close the estate earlier (making the executor look good). The actual time the estate will be open will depend upon the estate’s assets and the taxes that need be paid. New York’s Probate system is efficient, but there are certain steps over which you have no control. For example, certain tax returns need be filed and the forms might not even be available until the year following the death. The estate might contain hard to sell assets, such as an art collection or real estate, so the estate will have to stay open until the assets are sold. For a more detailed estimate, feel free to contact us with the details of your estate. Here are a few common examples of tasks that will force an estate to stay open longer than others:

  • The deceased’s final income tax return. If the deceased lived even one day into the year, you might have to file his or her final income tax return. In New York, this will mean at a minimum filing a final 1040. You may not be able to file these returns until the year following the death.
  • The Estate’s Income Tax Return: If the estate creates income, then the estate must file a Form 1041 Return with the IRS. Once filed, it can take months to determine if the return has been accepted as filed.
  • Sale of Real Estate: If the estate has real estate, preparing the property for sale, marketing the property and then closing the sale can take well over 6 months. Specialized property, such as commercial property or a farm can take even longer.
  • Creditor Claims: Creditors of a New York estate can bring their claims and the executor must deal with the claims. If the executor releases the estate’s funds to beneficiaries, and a legitimate creditor is discovered, the executor might be personally liable to the creditor if the estate funds cannot be recovered from the beneficiaries. Most executors find it wise to hold the estate assets until the date for creditor claims has past.

What if the Decedent Left No Will?

If a New York resident dies without a will, the estate assets will pass according to the New York Rules of Intestacy. The Probate Lawyer will then file a different petition with the Surrogate’s Court to have an Administrator named, rather than an executor. The rules that cover who can serve as Administrator are rather complex, so if you have a relative who died without a will in New York, feel free to contact us to help explain the process.

What are an Executor’s Duties and Responsibilities?

Once a probate petition is accepted, the executor or administrator’s job is to gather all the assets, pay creditors, satisfy all income/inheritance/estate taxes, and then distribute the remaining assets as the Will directs. Each estate is different and the amount of work and responsibility may vary. The estate’s location will also affect the personal representative’s responsibility. A New York estate must make certain reports to the Surrogate’s Court, which differs from the reporting for a Philadelphia estate’s reports to the Philadelphia Register of Wills. Strangely, even within a state the various reporting standards may differ.

A Probate Attorney versed in the rules of New York probate can advise the executor on these reports. In the end, before distributing any funds, the executor should submit a report of what has been done to the beneficiaries and obtain a complete release of liability. Without this release, the executor can be forced to return to court years later and account.

As New York Probate Attorneys, we regularly represent executors, administrators and personal representatives and guide them through the probate process. We work with you to analyze your particular estate and advise you of what options exist to bring the estate to a close.

What is an Executor’s Accounting?

An executor’s accounting is the report of the executor’s financial actions from the date the executor began serving until the end. It shows what was collected, what happened to those assets, any gain or losses on those assets and, in the Schedule of Distributions, how the executor plans to distribute the assets to the beneficiaries. In New York, these accountings can either be informal accountings or formal accountings.

Why Should the Executor Prepare an Accounting?

The executor should always obtain a release of liability from the heirs. The heirs, though, will often not wish to release the executor unless the executor can “account” for all the assets of the estate and explain all the expense incurred. To satisfy the heirs, the executor will need to provide an “accounting” of the assets and expenses.

Can the Beneficiaries Force the Executor to Prepare an Accounting?

In New York, the heirs can force the executor to account by filing a Petition. If they satisfy the judge, an order to account is issued.

What if the Executor Cannot Explain Where Assets Went, or Why Expenses Were Incurred?

If the numbers do not add up, the executor maybe found personally responsible for any shortfall. The court can “surcharge” the executor for the difference.

I am an Executor, How Can a New York Probate Attorney help me with an Accounting?

When filing an accounting, the Court requires the account to follow a specific format. The accounting must also be submitted with a specific petition. Further, accountings and the accompanying petitions may vary from County to County within New York. An experienced Probate Attorney who focuses in accountings is familiar with these differences. It is better to provide the Court a Petition in the correct format, rather than having the judge find it incomplete and order the Petition refilled.

I am a Beneficiary, How Can a New York Probate Attorney help me with an Accounting?

At times an executor may refuse to provide a beneficiary with an acceptable accounting. The Court has created a system that allows a beneficiary to force the executor to provide an accounting. Our firm has been forcing executors to file Accountings for over 20 years and, once the accounting is obtained, our background in estate planning and tax allows us to help you interpret the accounting and search out discrepancies for your objections.

What Tax Returns Does a New York Executor File?

It is important that all tax returns are filed correctly and in a timely fashion. The Executor or Administrator is Personally Liable for errors that harm the beneficiaries. Filing a late tax return means interest and penalties for which the executor may be personally liable. When an executor hires a Probate Attorney that Lawyer’s primary job is to advise and protect the executor. Probate Lawyers are well versed in preparing all estate related tax returns and can help make sure all returns are filed correctly and timely. In New York an executor may have to file the following returns:

  • New York Estate Tax Return
  • The Deceased’s final Form 1040 (Income tax)
  • The Deceased’s final Form PA40 (Income tax)
  • The Deceased’s final New York Income Tax Returns
  • The Form 706 (Estate Tax)
  • The Form 1041 (Estate’s income tax)
  • The Form 709 (Gift Tax)
  • Payroll Taxes
  • Specialized Taxes that the Deceased’s business might owe.

Do I Need to Come to New York to Probate the Will?

If you have the original will and an original death certificate, our firm can set up a process where you are sworn in as executor in your home county. There is no “reading of the will” required, so for most estates our clients never have to come to New York.

Please contact us for a free consultation regarding any of your Probate needs in New York.

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