Frequently Asked Questions: Probate in New York

What is Probate?

Probate is the legal process of paying a person's debts and expenses and distributing the remainder of the person's estate to those individuals designated by the deceased person's will, or according to the provisions provided by New York probate laws.

How Do I Begin Probate?

Upon the death of a decedent, the decedent’s next of kin should follow some basic procedures. First, they should locate the decedent’s Will. Second, if they do find a Will, they should identify and contact the named executor in the Will. Third, they should hire an experienced probate attorney who can initiate court proceedings as soon as possible to protect and secure the decedent’s assets.

If the decedent’s next of kin discover that the decedent has died without a Will, they should begin to have an administrator appointed to oversee the distribution of the decedent’s assets. New York law will also help determine who can qualify to be an administrator.

What is a Will?

A Will — or Last Will and Testament — is a document that tells the court, your heirs, and any other interested party who gets your estate when you die. You may also name the person or persons you want to appoint to administer your estate. The individual or individuals you name are called your “executors." If you have young children, you may also name a guardian to care for your children and a trustee to manage their finances.

How Long Does a Will Remain Valid?

A Last Will and Testament is valid until it is changed or revoked. This requires a review of your Will every few years or after major life events to be sure your Will is up-to-date. Major life events may include:

  • Marriage or divorce
  • Births or deaths in the family
  • Changes in the kind or value of the property you own
  • Death or relocation of your executor or designated guardians
  • You move to another state

What is the Role of an Executor?

An executor is the person named by the creator of the Last Will and Testament (the testator) to carry out the terms and provisions of the Will.

The executor's legal responsibilities include:

  • Initiate the probate of the Will
  • Collect and inventory the testator's assets
  • Collect debts owed to the estate
  • Pay claims against the estate
  • Distribute assets to the beneficiaries of the Will
  • Final closing of the estate

These responsibilities can be time-consuming. If you have been named the executor of a New York estate, contact Smolarek Law at (716) 771-1601 to schedule a consultation with a probate and estate administration attorney to discuss your role in the estate administration process.