In the State of New York, the probate process is undertaken in the Surrogate’s Court before a Surrogate Judge. Surrogate’s Court also supervises estates called intestate estates, where a Will was not drafted by the decedent. There are a variety of documents the Surrogate’s Court requires to facilitate the probate process. The most important document is the actual original Last Will and Testament. It will also be necessary to submit a raised seal original death certificate. The purpose of the submission of the death certificate is to prove that the individual who made the Will is deceased. In addition a probate petition will need to be filed. The probate petition will go into the name of the person bringing the proceeding which is usually the executor of the Will. In situations where the executor predeceased the individual who made the Will, or for any reason is unable to fulfill his or her duties as an executor, the Will will usually name an alternate or successor executor whose name must be contained in the petition for probate.
The Probate Petition
The probate petition will also have information as to the date the Will was executed, the names of individuals who acted as the attesting witnesses to the Will and it will establish an estimated value of the property of the individual who died. The value of each type of property the individual who died had also must be listed in the probate petition. Items such as bank accounts, life insurance policies, and annuities which have beneficiary designations contained in those documents are considered testamentary substitutes and do not need to be named in the probate petition. In addition, the names and addresses of all beneficiaries and blood heirs of the decedent must be named in the probate petition. The probate petition also must be signed by the executor or a successor executor and their signature must be notarized. It should be noted that the Surrogate’s Court in New York does not allow probate petitions to be submitted unless they are completed and all the information required is contained in the petition.
Waivers and Consent Forms
The attorney for the executor will usually submit waiver and consent forms to all of the next of kin of the decedent. This form establishes that these individuals who are next of kin, or heirs under intestacy, do not contest the terms and conditions of the Will. If waiver and consent forms are not signed by the family members, the court will then issue a Citation which has to be served on all non-consenting heirs of blood. This directs these individuals to appear in court on the return date of the probate petition in the event they seek to contest the Will.
In addition, a document referred to as a Kinship Affidavit needs to be submitted to the court to show who are the children and other blood heirs of the decedent.
Submission of Documents in the Surrogate’s Court
Although the Courts in New York have a uniform set of procedures, unfortunately, the clerks in each of the Metropolitan area Surrogate’s Courts have their own idiosyncracies with regard to what documents they seek to have submitted in probate and administration proceedings. They also have individual requirements that are not uniform from county to county as to court procedures. The best way to file an estate in the Surrogate’s Courts is to retain an experienced attorney who practices law in the areas of wills, trusts, estate and probate matters.
