What is Probate?

Question: What is probate?

Answer: When a person dies and leaves a Will, and there are assets in the Decedent’s individual name that do not pass by operation of law, there is a legal process that takes place that is called probate.

Before the Decedent’s Will has any legal effect, it must be admitted to probate by the Surrogate’s Court located in the county in which the Decedent died.  In other words, the Surrogate’s Court must make a determination that the Decedent’s Will is valid.

In order for a Will to be valid in New York, it must be signed in the presence of at least two witnesses and each witness must sign in the presence of the other.  The person making the Will (sometimes called the testator) must be competent to do so of his or her own free will, and not under any duress or undue influence.  A Will that has not been admitted to probate has no effect.  It is only after the will is probated that the Executor who is named in the Will has authority to act.

The probate process is commenced by filing the original Will, a certified copy of the Death Certificate and a probate petition with the Surrogate’s Court.  The Surrogate’s Court charges a fee for filing the probate petition which is based upon the value of the Estate.  After jurisdiction is complete and all issues have been addressed, the Surrogate’s Court will issue a decree granting probate and Letters Testamentary will be issued to the Executor(s) named in the Will.

Letters Testamentary is the document which gives the Executor the authority to administer the  Decedent’s estate.  The Executor will be responsible for identifying and marshalling the Decedent’s assets, having the Decedent’s property appraised, paying debts and taxes and distributing the property as the Will directs.

The complexity of the probate process depends on various factors.  Proper estate planning can help to ensure that probate is a smooth process and that your estate is administered pursuant to your wishes.

 – Nancy Burner, Esq. and Maria Johnson, Esq.