A person who dies leaving a last will and testament, a “testator,” which directs to whom his or her property is to be distributed is said to have died “testate.” Before a testator’s property can be distributed in accordance with the terms of his or her will, however, this person’s will must be “admitted to probate” by the Surrogate’s Court in the county in which the testator last resided before death. In order for the Surrogate’s Court to admit the will to probate, the Surrogate’s Court must be satisfied that the will was validly made in accordance with the law, was the testator’s most recently made will, that the testator had the required mental capacity to make the will and that the testator was not improperly influenced to make the will.
In addition to the above, the Surrogate’s Court will require that the following procedural steps be taken before a will is admitted to probate: First, the will must be brought to the appropriate Surrogate’s Court and must be accompanied by a fully complete petition for probate with all necessary supporting documents (such as a family tree, oath and designation, etc.); Second, the court will require that the person petitioning for probate identify all necessary/interested parties and prepare and serve a court issued citation, which is a notice directed to all necessary/interested parties informing them that the will is being offered for probate and that they have the right to contest the validity of the will if they so desire; Third, if any necessary/interested party wishes to contest the will, the court will hold a hearing to determine the validity of such party’s objections to the will; Forth, after such hearing, or if no necessary/interested person contests the validity of the will, the court will issues letters testamentary to the executor who will then have the power to collect and distribute the testator’s property in accordance with the testator’s wishes as expressed in the will.
In a legal sense, probate is finished when a will is admitted to probate and an executor appointed. Most people, however, think of probate as the entire administration of a testator’s estate, which involves identifying and collecting all of the testator’s assets, determining the validity of all claims creditors make in regard to debts owed by the testator’s estate, paying all valid debts, collecting any and all income due to the testator, filing all tax returns with the IRS or New York State Department of Taxation and Finance, which includes the testator’s final personal income tax return, the preparation and filing of an estate tax return, if required, and the preparation and filing of fiduciary income tax returns, if required, paying all taxes due in regard to such tax filings or collecting refunds due, preparing an accounting to be distributed to, and approved by, all beneficiaries of the testator’s will and, finally, distributing all of the testator’s assets in accordance with the testator’s will.
If a loved one has died and you need assistance probating his or her will, contact our office today for a free consultation.
