The New York probate process is governed by the Surrogate’s Court Procedure Laws (1401-1424).
How to start probate of a New York Will
A petition must be filed with the probate court. The petition must:
- state the citizenship of the petitioner and the testator;
- describe the New York Last Will and Testament being offered for probate; and
- state the names and post-office addresses (so far as they can be ascertained with due diligence) of all persons required to be cited and all legatees, devisees and fiduciaries named in the Will or any other Will filed in relation to the estate. § 1402
Who may petition for probate?
Any of the following persons have the right to start a New York probate process:
- any person named in the Will as beneficiary, fiduciary or guardian;
- a guardian of an infant beneficiary;
- the committee of an incompetent beneficiary;
- the conservator of a conservatee beneficiary;
- a creditor;
- any person entitled to administration with the Will annexed under s1418;
- any party to an action or proposed action with the deceased if he/she were still alive. § 1402
Probating a New York Will
After process is issued to the appropriate persons in accordance with s1403, a hearing is held.
The court must receive proof of the New York Will by testimony of the attesting witnesses. This testimony may be given in writing by affidavit, unless a party raises an objection to probate or the court otherwise requires a witness to be produced and examined. § 1404-6
Before the Will can be admitted to probate, the court must be satisfied:
- with the genuineness of the Will;
- the validity of its execution;
- the testator at the time of executing the Will was in all respects competent to make a Will and not under restraint. § 1408.
If satisfied that the New York probate process has been complied with, the court must admit the Will to probate and the New York Last Will and Testament and the decree are recorded. § 1408
Once probate is issued, but before a personal representative is appointed, a notice of probate is mailed to each person required in accordance with s1409.
Who is the personal representative?
The personal representative is the person who administers the estate.
If there is a New York Will in place which names an executor, the court grants letters testamentary to that person as long as they are willing and able to serve. § 1414
If there is no executor named, then the court must grant letters of administration with the Will annexed to persons in the following priority:
- a sole beneficiary under the New York Last Will and Testament (or if dead, to his/her fiduciary);
- one or more residuary beneficiaries (or fiduciary if dead);
- to one or more of the persons interested in the estate (or their fiduciary);
- a person agreed upon by all beneficiaries;
- the public administrator or treasurer of the county;
- if none of the persons above accept, the court may issue letters to the person who filed for probate or to any person the court deems fit. § 1418
What if the Will is lost or destroyed?
If a New York Last Will and Testament has been lost or destroyed, it may still be admitted to probate using the New York probate process if:
- it can be shown that the Will has not been revoked; and
- due execution can be proved (in the same manner as an existing Will); and
- all the provisions of the New York Will can be clearly and distinctly proved by at least two credible witnesses or by a true and complete copy or draft of the Will. § 1407
New York Estate Tax
As part of the New York probate process, the personal representative must deal with the estate taxes.
A New York Estate Tax Return (Form ET-706) is required to be filed for residents who died on or after February 1, 2000 if the total of the federal gross estate, plus the federal adjusted taxable gifts and specific exemption exceeds $1,000,000.
If the estate is required to file a NYS estate tax return, it must also file a federal tax return with it, even if a federal return is not required to be filed with the IRS for the estate.
A copy of the decedent’s New York Will must be included as a supplemental document.
If the estate is not required to file a tax return, then the executor or administrator must still file an ET-30 Application for Release of Estate Tax Lien Form in order to transfer real property. Otherwise, a release is not required.
All forms must be filed with the New York state department of taxation and finance.