Losing a loved one is hard enough. Leave the legalities to us.

If a loved one has died and you're unsure what to do, you are not alone. We know losing a loved one is all consuming.

People often do not know where to start. They feel guilty for worrying about the financial and legal aspects. We are here to help you take the necessary legal steps.

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When problems develop between family members in an estate proceeding, it is usually due to underlying issues that have lain dormant for years. There are methods we can use when dividing estate assets to avoid ill will. Sometimes resentments take on a life of their own and litigation is necessary.

Know Your Next Steps

Book an appointment online as there may be immediate steps you must take. We can get started right away to have someone appointed to oversee the estate, explain family member's roles, decipher the estate plan, and advise you of your rights.

We will walk you through all the steps, it’s not something you need to do alone. A Probate and Estate Administration attorney can make the process easier.

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What is the difference between dying with a Will & without a Will?

Without a Will

When someone dies without a will, “intestate”, the estate goes through a process similar to probate called an Administration. As opposed to a Last Will & Testament, where the testator dictates who will receive assets, distribution is strictly controlled by the intestacy statute.

With a Will

When someone dies in New York State with a Last Will and Testament, their estate must be administered through the Surrogate's Court managed probate process to validate the will and grant legal authority to the nominated Executor.

If someone dies without a last will and testament, their assets will be distributed according to the default guidelines under EPTL 4-1.1:

If Deceased:	Distributees
Was married and no children	spouse inherits everything
Had children but no spouse	children inherit everything
Had spouse and children	spouse inherits the first $50,000 and the remaining assets are split evenly between spouse and children.
Had no spouse and no children, parents living	parents inherit everything
Had no spouse and no children, parents predeceased, had siblings	siblings (or their lineal descendants) inherit everything
Had no spouse, no children, no siblings	Maternal and Paternal Grandparents (or their lineal descendants) inherit everything
Then divided btw maternal and paternal aunts & uncles, then cousins...it gets complicated.

New York Probate Timline

Both a Probate and Estate Administration involve:

Filing a petition with the proper Surrogates Court in the county where the decedent resided.
Obtaining waivers and consents from heirs (distributees) so the named executor or proposed administrator can be appointed on the estate.
If no waiver is forthcoming, getting a citation date for the person to show up in court and contest the appointment.
Obtaining Letters of Administration or Letters Testamentary giving the Administrator or Executor the power to act.
Opening an estate account and getting an Federal Tax ID Number.
Marshaling the assets and moving to the estate account.
Paying debts to rightful creditors.
Payment of decedent's income taxes.
final distribution of decedent’s property to heirs.
Final accounting, and possibly an estate tax return.

Court Delays Since Covid-19

Due to the covid 19 pandemic Surrogates Courts all over NYS have become backlogged - especially in Brooklyn and Manhattan. It is crucial to contact an attorney right away to see what needs to be done.

We Make the Process Simple

Timeline & Cost

The typical Surrogate's Court Probate and Administration timeline in Kings and New York County is between 6 and 18 months.

We take retainers on estate matters on an very reasonable hourly basis - with typical initial retainers $1,500 to $10,000 - depending on the complexity involved.

Our Process

1
Free 1 Hour Consult online or in person
2
Secure Client Portal
3
All Paperwork Done Remotely
4
Frequent Updates

Our consultations are always thorough
and always free

Book online, schedule through email
or call our office at (212) 739-1736

Probate and Estate Administration Frequently Asked Questions

What happens to a person’s assets when they die?

What happens to a person’s assets when they die depends on how a particular asset is titled. Any assets titled in the decedent’s sole name and without a named beneficiary—pass through the probate or administration process in Surrogate’s Court.

Certain types of assets are “non-probate assets” that bypass probate or administration and pass directly to beneficiaries. These include:

Property in which you own title as “joint tenants with right of survivorship” or as “tenants by the entirety” if married. Such property passes to the co-owners by operation of law and does not go through probate or administration.
Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
Life insurance policies where there are designated beneficiaries.
Bank accounts with “pay on death” (POD) designations or “in trust for” (ITF) or “transfer on death” (TOD) designations.
Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.

What happens if someone dies without a Last Will and Testament?

Is there tax on my inheritance?

Very few estates are liable for federal estate tax and so there is no tax on most inheritances. The 2017 Tax Cuts and Jobs Act increased the federal estate tax exclusion amount for people dying between 2018 and 2025. The exclusion amount for 2022 is $12.6 million – so anyone can gift that much during their lifetime or at their death. However, the act is set to sunset on December 31, 2025 and there is talk of a decrease as soon as 2022. If an estate is over the exclusion amount, the federal estate and gift tax is 40 percent.

New York State’s estate tax exemption for 2021 is $5.93 million. New York still has the dreaded “cliff” meaning that if an estate is valued at more than 105% of the exemption amount then the estate loses the benefit of the exemption and pays tax on the entire estate.

Can estate tax be minimized or avoided completely? Yes, let’s talk.

Who can petition the court when someone dies without a will?

Who can petition for probate?

In most cases, the named Executor petitions for probate. New York’s Surrogate’s Court Procedure Act (SCPA) § 1402 states that a petition for probate of a will may be brought by:

Person named in the will as legatee, devisee, fiduciary or guardian
Guardian of an infant legatee or devisee
Conservator of a legatee or devisee
Creditor of the estate
Public Administrator or the County Treasurer on order of the court, where a will has been filed in the court and proceedings for its probate have not been instituted or diligently prosecuted.

What are letters testamentary/letters of administration?

Does the executor have to pay the decedent’s bills and debts?

Is an Executor or Administrator liable if they make a mistake?

An Executor owes legal fiduciary duty to the estate’s beneficiaries and is obligated to carry out the Will according to its terms and to act with good faith and honesty. The Executor must manage the estate assets capably and address all issues that may arise. An Executor could be personally liable should something go wrong with the administration of the estate.

One of the costliest mistakes an Executor can make is cashing out a retirement account – that is just one possible pitfall. The cost of hiring an attorney to probate an estate is not expensive and less frustrating and cost efficient in the long run.

What are the filing fees to probate an estate in New York State?

The filing fee to probate or administer an estate depends on the total value of the assets. Some assets, including non-probate assets do not figure into the value of the calculation.

If the Value of Estate or Subject Matter is:

Less than $10,000 - the fee is $ 45.00.
$10,000 but under $20,000 - the fee is $75.00.
$20,000 but under $50,000 - the fee is $215.00.
$50,000 but under $100,000 - the fee is $280.00.
$100,000 but under $250,000 - the fee is 420.00.
$250,000 but under $500,000 - the fee is $625.00.
$500,000 and over - the fee is $1,250.00.

What is a small estate proceeding?

When someone dies with less than $50,000 in personal property, then the estate is eligible for a “voluntary administration.” The proceeding is available if the decedent died with or without a Will. The voluntary administration proceeding is less complex than a full probate or administration proceeding because consent does not have to be given by the distributees of the decedent’s estate. This can avoid the expense of a long and drawn out litigation and the filing fee is only a buck ($1). A small estate proceeding is not available when the estate contains the possibility of a lawsuit, such as wrongful death or if the deceased owned real property.

When is a Last Will and Testament valid?

What is probate?

Probate is the legal process through which assets are transferred from the deceased to the beneficiaries named in a last will and testament. Before a Will has any legal effect, it must be found valid in the Surrogate’s Court located in the county where the decedent died. A Will that has not been admitted to probate has no effect. It is only after the Will goes through the court process that the Executor named in the Will has authority to act.

Where do I probate a Will?

What is an Executor?

What is the difference between an administrator and executor?

When a person dies intestate (without a Will), assets owned in that person’s sole name must be administered through the Surrogate’s Court in a process known as administration. Instead of an Executor, as in a Will, an Administrator is appointed. There is a detailed order of who has priority under EPTL 4-1.1.

Letters of Administration must be issued to the person with statutory priority unless: that person is an infant; incapacitated; a non-domiciliary of the United States; a felon or does not possess the qualifications required of a fiduciary by reason of substance abuse or dishonesty. Alternatively, those who have a higher order of priority can designate someone else to be the Administrator.

Does someone get paid for serving as an Executor?

Still have a question?
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Probate Attorney

Probate and Estate Administration in NYC. Compassionate and experienced litigator.

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Office:
221 Columbia Street
Brooklyn,NY 11231

Ph. (212) 739-1736 Fax (212) 202-5263
jwilson@jessicawilsonlaw.com

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*Please note that our office does not provide notary service to the public. If you drop in for notary, the attorney will accommodate you if possible. However, we do not under any circumstances take appointments or calls regarding notary services. Thank you for understanding.