How Property of Deceased Persons is Distributed in New York State
There are many legal and practical matters that must be attended to when a family member passes away. In New York State, proceedings pertaining to property belonging to persons who have died are handled almost exclusively in the Surrogate's Court. The property belonging to a deceased person is known as an "estate". There are many types of proceedings that are brought in the Surrogate's Court, with the most common being probate proceedings and administration proceedings. Probate proceedings are commenced when the deceased died with a will, ie. died "testate". Administration proceedings are brought when a person dies without a will, i.e. "intestate".
If a deceased person's estate is valued at $50,000 or less, and does not include real property, a proceeding known as "voluntary administration" may be commenced, whether the deceased died testate or intestate.
Not all property belonging to a decedent passes through his or her estate. For instance, bank accounts and investment accounts with a named beneficiary pass directly to the beneficiary. Financial accounts owned by the decedent and another person as "joint tenants" (also referred to as JTWRS - joint tenants with right of survivorship) pass directly to the surviving account holder. Real property owned as joint tenants or as tenants by the entirety (for married persons) passes directly to the surviving owner. In all of these instances, no court proceeding is necessary -- the property passes directly to the surviving owner or beneficiary. If a deceased owned both types of property, ie. property passing through the estate and property passing directly to survivors, a probate or administration proceeding would still be necessary for the property passing through the estate.
Probate Proceedings
If the deceased left a will, i.e. died “testate,” then a probate proceeding must be commenced in the Surrogate’s Court. A probate proceeding accomplishes two functions – admitting the will to probate and appointing an executor.
To admit a will to probate means the court has found the will to be genuine and valid. An executor is appointed to gather the estate’s assets and distribute these assets according to the terms of the will. Usually, the person nominated in the will to act as executor is the one who commences the probate proceeding.
A probate proceeding is commenced by filing a petition for probate, along with the original will, a copy of the will, and a certified death certificate. Other documents and forms are generally required. Which ones are required depends on the particular circumstances of each proceeding and the county in which the proceeding is filed. Generally, the probate proceeding is commenced in the county in New York state in which the decedent was domiciled as of the date of death.
Probate is a formal proceeding that requires that certain persons, known as “necessary parties,” be made a party to the proceeding. Among the necessary parties are the distributees of the decedent. Distributees are those persons who would share in the decedent’s estate in the absence of a will, i.e. the decedent’s closest heirs. (See below for a more detailed explanation of intestate distribution.)
In order for a person to be made a party to the probate proceeding, it is necessary that personal jurisdiction be acquired over the person. This is accomplished in one of two ways. The preferable method is for the person to sign a form known as a "Waiver of Process: Consent to Probate." When all the necessary parties sign this form, the will can be admitted to probate, and the executor is appointed without the need for a court appearance.
Those necessary parties who do not sign the waiver must be served with a citation to appear in the Surrogate’s Court. Persons that reside in New York state must be served with the citation and a copy of the will by personal delivery. Those residing outside of New York state can be served by certified mail or special mail service.
On the citation return date, anyone wishing to object to either the validity of the will or the appointment of the executor must make their position known to the court. Such persons may then either file formal “Objections to Probate” or seek an examination of the draftsperson of the will and the witnesses to the signing of the will.
If all necessary parties have been properly served or have signed waivers, and no objections are filed, the will can be admitted to probate. The court will then issue a probate decree and a document called “Letters Testamentary,” which is actually a single sheet of paper. The Letters Testamentary is proof of the executor’s authority to act on behalf of the estate.
Administration Proceedings
When a person dies without leaving a will, he or she is said to have died “intestate.” In such cases, an administrator must be appointed to collect and distribute the decedent’s assets. An administration proceeding must be commenced in the Surrogate’s Court, in the county in which the decedent resided, to have the administrator appointed. The relevant statute determines who has priority to be named administrator. The order is as follows:
Spouse
Children
Grandchildren
Parents
Brothers or sisters
Any other distributees, with preference to the person entitled to the largest share of the estate
Commencing an administration proceeding is similar to commencing a probate proceeding, except that there is no will. The procedure for joining necessary parties is similar to that in probate proceedings (see above). If there is no objection to the appointment of the administrator, the court will issue “Letters of Administration,” which is actually a single sheet of paper. The Letters of Administration is proof of the administrator’s authority to act on behalf of the estate.
The Order of Intestate Distribution in New York
The assets of an individual dying intestate are distributed according to the statutory order of distribution in New York. Assets can be in any form, including bank accounts, personal property or real estate. However, it is important to keep in mind that certain jointly owned property, such as real estate, may pass directly to the joint owner, depending on the form of ownership.
The order of intestate distribution in New York is provided by New York EPTL § 4-1.1, as follows. (Note: "issue” means a descendant of the individual who died intestate including children, grandchildren, great-grandchildren, etc.)
If a decedent is survived by:
A spouse and issue – $50,000 and one-half of the residue to the spouse, and the balance to the issue
A spouse and no issue – the whole to the spouse
Issue and no spouse – the whole to the issue
One or both parents and no spouse and no issue – the whole to the surviving parent or parents
No spouse, issue or parent – the whole to the decedent’s siblings.
Not included in the above list are more remote distributions contained in the statute, including grandparents, aunts, uncles and cousins.
The above persons are known as “distributees.”
Will Contests
A will contest, more formally known as "Objections to Probate", is a common proceeding in the Surrogate's Court. To have standing to object to the probate of a will, a person must be adversly affected by the admission of the will to probate. Persons who would be adversly affected include the decdent's heirs, who would receive the assets of the estate in the absence of a will (i.e. intestate distributees), or persons who were beneficiaries under a prior will executed by the decedent and who are receiving less under the will being offered for probate.
A common scenario is when a will leaves all of the decedent's estate to only one of the decedent's children, leaving nothing for the other child(ren).
Grounds to Object to Probate of a Will
Legal grounds for objecting to the probate of a will include lack of due execution of the will, lack of testamentary capacity, and undue influence.
Lack of Due Execution
The execution of a will is a formal procedure that must be followed precisely. In New York, the signing of a will must be witnessed by two distinterested persons, who must sign their names to the will after the testator (the person whose will it is) signs his or her name. The testator must declare to the witnesses that the document being signed is his/her will and must request that the witnesses sign their names to the will. (There are varations to this procedure that are rarely used.) If the testator is incapable of signing the will, another person can sign the testator's name, and that person must also sign the will. It is common practice for witnesses to the will signing to also sign an affidavit attesting that the statutory requirements of the execution of the will were followed. The affidavits are then attached to the will and are generally sufficient to admit a will to probate in the absences of objections.
If the will was not properly executed according to the statute, the court will deny probate of the will. The proponent of the will (i.e. the person submitting the will for probate) has the burden of proving that the will was properly executed.
Lack of Testamentary Capacity
The proponent of the will must also establish that the testor possessed the necessary mental capacity to execute the will. Generally, the testator must have an understanding of the property that he/she owns; the "natural objects of his bounty" (i.e. the testator's spouse, children, etc.); and how the will disposes of his/her property.
Issues of testmentary capacity usually arise with testators suffering from dementia or other condition that affect their cognition and understanding. What matters is what the testator's mental capacity was at the time of execution of the will. There is a presumption that the testator's mental capacity, either sound or unsound, prior to the execution of the will carries over to the will execution.
Undue Influence
The person objecting to a will has the burden of proving undue influence. Generally, to prove undue influence, an objectant must show that the will was the product of influence to the extent that it was in the nature of coercion that could not be resisted by the testator. Every case of undue influence is fact specific. Proving undue influence is difficult because it usually requires circumstantial evidence, i.e. exertion of undue influence is often carried out in private, without witnesses or direct evidence.
Examination of Will Draftsperson and Attesting Witnesses
Before filing objections to the probate of a will, potential objectants are afforded the opportunity to question the attorney who drafted the will, and the witnesses to the will execution. These examinations are known as Section 1404 examinations. The examinations can be used to gather evidence to determine if formal objections to the will should be filed, as well as to prove the objectant's case to deny probate of the will.
Free Consultation for Surrogate's Court Matters
Surrogate's Court proceedings are complex and can be very confusing for lay persons to understand. If you need to probate a will or petition for letters of administration, or you have received a citation to appear in the Surrogate's Court, contact my office at (631) 673-9600 for a free consultation. Many matters in Surrogate's Court are time sensitive and you should not delay consulting with an attorney.
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