Probate Proceedings FAQ
Non-probate assets are those assets that might be part of one’s overall estate but are not included in a Will. Such assets are owned solely by the decedent at date of death and exclude but are not limited to: joint interests in real property (land), life insurance, retirement accounts, and financial institutional accounts. Non-probate assets pass to designated beneficiaries via institutional forms. Non-probate assets are only brought back into one’s testamentary plan if there are insufficient probate assets to satisfy a surviving spouse’s required inheritance.
A Will may be probated by any “interested person”: a legatee, a devisee, a fiduciary or guardian, a creditor, or any other person with a pecuniary interest in a decedent’s estate. However, if the Will maker nominates an executor, then the court will usually uphold such nomination over other interested persons.
Under New York law, you may not disinherit your spouse. If you are married and fail to provide for your spouse in your Will, then absent a prenuptial agreement or extraordinary circumstances, your spouse has a right of election to collect the greater of $50,000 or one-third of your estate if you have a Will. If you do not have a Will, then based upon your remaining biological or formally adopted family members, your surviving spouse will be entitled to a minimum of $50,000 plus one half of the rest of your estate, excluding exempt property like household items and the family car.
Exempt, or set-off, property in New York is personal property of the decedent that is not counted in calculating a decedent’s estate or a spouse’s right of election. Such property includes, but is not limited to: cash up to $25,000, household items up to $22,500, and a motor vehicle up to $25,000.
Present the original Will to the Surrogate's Court under an Administration CTA (with the Will annexed) proceeding. The Surrogate will issue Letters of Administration CTA and will appoint an Administrator who will follow the terms of the Will while administering the estate. The Surrogate will select an Administrator CTA in the following order: the sole beneficiary listed in the Will, one or more residuary beneficiaries, or one or more interested persons.
In New York, convicted felons (absent a Certificate of Release From Civil Liabilities), infants or incapacitated persons, and those who are appointed yet are found to be unqualified because of "substance abuse, improvidence, a want of understanding" or otherwise deemed as unfit may not serve as Executor. Further, a Surrogate will not appoint an Executor who is a non-U.S. person living in New York unless a co-Executor who is a U.S. citizen and resident of New York is appointed alongside the non-US person.
In most cases, the main probate proceeding must be commenced where the decedent was domiciled and then an ancillary probate proceeding must be commenced in the state where the decedent left out of state property.