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New York Probate

Learn about the New York probate legal system.

The New York probate system is a part of the civil court system. [©Jupiter Images, 2009]
©Jupiter Images, 2009
The New York probate system is a part of the civil court system.

The New York probate system is the legal system through which property is transferred from a deceased individual to living beneficiaries. In NY probate, the court that handles these cases is called the Surrogate's Court and its job is to resolve cases dealing with the validity of wills and the management of estates or trusts. Judges in the court also have the authority to distribute personal and real property located within the state. Usually the case must be heard in the local Surrogate's Court or the court with jurisdiction over the area in which the deceased lived. The New York probate court cannot handle out-of-state cases.

Wills and the New York Probate System

The New York probate system is a part of the civil court system. When a will is present, the probate system determines the validity of the will and ensures the transfer of property in accordance with the will. In the event that there are outstanding debts, the New York probate judge orders the creditors to be paid. When no will is present, the probate court assigns a trustee to oversee the process of accepting claims against the estate and proceeds with the normal duties of distributing the property.

The executor of an estate has the responsibility to locate the deceased individual's original will if one has been prepared. While some people prefer to leave a will in a safe deposit box, this can cause additional expense and trouble for the executor. In order to open a safe deposit box registered under another name, the executor must hire an attorney to get a court order to open the box. Locating the original will also can be a problem if the deceased placed it in an unconventional hiding place.

Once a will is located, the executor must file a probate for the will. The New York probate system requires that all beneficiaries and fiduciaries be notified that the probate is being filed. This allows an individual who may be negatively affected by the will the opportunity to appear in court and object to the will. This is also the time to contest a will. In some cases, the court may require testimony from beneficiaries to confirm the validity of a will.

New York Probate Costs

For large estates that go to probate, it may be necessary to hire an attorney, the cost of which is in addition to the fees charged by the court. In addition to these expenses, the executor must arrange for the payment of taxes. These can include the final income tax for the deceased and taxes for the estate. According to The Association of the Bar of the City of New York the executor will need to get tax waivers from the New York State Tax Commission to transfer any property with a value over $30,000. New York offers a simplified probate process for property with a gross value of $20,000 or less, excluding real property and assets that pass to beneficiaries.

Types of Property Handled
The New York probate system divides property into two categories: real and personal. Real property is land or buildings; everything else falls under personal property. Most state laws allow a set amount of property to be transferred to beneficiaries outside of probate, but New York has its own laws and regulations for the amounts and types of property that can be transferred. Property that is co-owned should pass to the co-owner without the need for probate. Co-owned property can include bank accounts, homes, vehicles and land. Assets with benefits payable to the beneficiary, including life insurance, 401(k) accounts and individual retirement accounts (IRAs) also typically bypass the probate system. If the deceased individual established a trust, the assets of the trust may transfer to a new owner without going through probate, as long as the trust is set up in accordance with New York laws.

Guardianship Matters

In some cases, the New York probate system handles matters of adoption and guardianship. Most of the time the Surrogate's Court handles these cases when a death is involved, otherwise, the family court system usually hears cases. The Surrogate's Court may handle cases in which a parent or guardian has been diagnosed with a fatal or chronic illness. The probate system handles two types of strategies: early-petition process and designation process. Under the probate system, the parent or guardian retains full parental rights until death or incapacity.

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