WHAT IS PROBATE?
Probate is the legal process whereby the Last Will & Testament of a deceased person is determined to be valid. Essentially the probate court will ascertain whether the Will was validly prepared and executed. The person initiating the probate proceeding is referred to as the "petitioner." In addition to asking the probate court to determine that the Will is valid, the petitioner will also ask for the appointment of an "executor" for the estate.
The executor, who is generally named in the deceased person's Will, is responsible for handling the affairs of the deceased in accordance with the terms of the Will. Once the probate court has determined that a Will is valid, it will issue "Letters Testamentary." This document will provide the executor with the legal authority to act for the estate.
What if Someone Dies Without a Will?
If a New York resident dies without a Will, their heirs may need to bring an "Administration Proceeding" in Surrogate's Court to enable them to distribute the decedent's assets. An Administration proceeding is similar to a probate proceeding except that there is no Will to be validated.
Pursuant to New York law, when someone dies leaving assets in their name alone, these assets will be distributed their family members in the following order:
(1) If they have a spouse, the spouse would receive $50,000 plus 1/2 of the assets, and the decedent's children would share the balance
(2) If they have a spouse and no children, the spouse would receive the entire estate
(3) If they have children, but are not married, their children would share the estate assets
(4) If they are not married and have no children, their estate would pass to their parent or parents
(5) If none of the above apply, their estate would pass to their siblings and/or their children (if their parent is deceased)
(6) If none of the above apply, their estate would pass to grandparents, or if they are deceased, to their children, i.e. the decedent's aunts and uncles; and/or and their children; and/or grandchildren; and/or great grandchildren