Estate Settlement FAQ

What does probate mean?

Probate refers to the process where a decedent’s Will is filed with the Surrogate’s Court having jurisdiction over the estate together with certain documents and a Petition. The Petition asks the Court to declare that the Will is a valid and genuine Last Will of the decedent and should be used to determine who is entitled to receive the decedent’s property. If the Court grants the Petition, documents indicating the Executor or Administrator’s authority will be issued. These documents are used by the Executor or Administrator to collect and distribute the estate’s assets according to law and the provisions of the Will.

What happens after the Will is admitted to probate by the Court?

After the Will is admitted to probate, the person designated in the Will as Executor is granted what are known as Letters Testamentary, which give the Executor the power and duty to collect and value the decedent’s assets, pay all of the person’s just debts and funeral and administration expenses, file whatever estate or income tax returns that may be required, and, when all of this has been accomplished, look to the Will to see who the decedent wants to receive the remaining assets of the Estate.

Since I was named Executor under the Will, isn’t it true that I may begin to administer the estate immediately upon the death of the testator or testatrix?

No. A petition must first be filed with the appropriate Surrogate’s Court to determine that the Will is valid and that you are fit for appointment as a fiduciary. Until then, you don’t have any authority to settle the estate even if you were named in the Will.

What happens if my loved one dies without a will?

A person who dies without a will is said to have died “intestate.” Because the deceased person left no direction on how to dispose of their assets, New York law provides for how those assets will be distributed among the surviving members of the decedent’s family. A certified copy of the death certificate needs to be filed with the administration petition and other supporting documents in the Surrogate’s Court located in the county in which the decedent was domiciled at the time of their death. There will be a filing fee based on the size of the estate.

What tax returns are required to be filed by an Estate?

Returns that may be required include the decedent’s final federal and state personal income tax returns, federal and state fiduciary income tax returns reporting income earned after death and federal and state estate tax returns if the value of the estate is large enough to require estate tax returns to be filed.

How much does estate settlement cost?  How long does it take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will, the cooperation of the interested parties and the Surrogate’s Court and the location of real property owned by the estate.  Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay.  Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved, but it can take as little as a few weeks or as much as several years depending on the situation. Common expenses of an estate include executors’ fees, attorneys’ fees, accounting fees, court fees, appraisal costs, and surety bonds.  These typically add about 2% to 7% of the total estate value.