Surrogate’s Court hears cases involving the affairs of decedents, the probate of wills, and the administration of estates. The Surrogate’s Court also handles certain types of guardianship petitions and adoptions. Every county in the State of New York has a Surrogate’s Court.
When a person dies with a Will (testate), the nominated executor must file a probate petition with the Surrogate’s Court in order to be officially appointed by the Court and to be able to distribute the property left by the decedent. First, the executor will file the original Will and a certified copy of the death certificate along with the probate petition in Surrogate’s Court. Then, notice needs to be given to the decedent’s next-of-kin who will either sign waivers and consents or be issued a citation to appear in court to have the opportunity to object to the Will. After jurisdiction is complete and issues with the Will, if any, are addressed, the Surrogate’s Court will issue a decree granting probate and Letters Testamentary will be issued to the executor. Letters Testamentary is the document that gives the executor the authority to administer the decedent’s estate, allowing him or her to marshal the decedent’s assets, pay any debts of the decedent, and distribute the property in the estate according to the terms of the Will.
When a person dies without a Will (intestate), it is necessary to file an administration petition with the Surrogate’s Court. Here, a close relative of the decedent applies to become the decedent’s administrator who, like an executor, will collect the estate assets, pay off any debts, and distribute the property according to New York’s law, once appointed. As with a probate proceeding, all interested parties must be given notice and must either sign a waiver and or be served with a citation issued by the court.
Where a person passes away with $50,000 or less in personal property and didn’t own any real property solely in his/her name, a small estate proceeding (also known as a voluntary administration proceeding) is available. A small estate proceeding is a less complex proceeding because consent does not have to be given by the decedent’s next-of-kin. Either the nominated executor or closest living relative will file an Affidavit of Voluntary Administration with the Surrogate’s Court to permit them to marshal the assets, pay off any debts, and distribute the property of the estate.
Navigating Surrogate’s Court can be tricky, so it is always a good idea to consult with an experienced Trust and Estate’s attorney to determine the best way to proceed.