New York Estate Planning & Elder Law Blog
Barring the creation of a trust, all estates must pass through probate court to certify the estate before assets may be disbursed to beneficiaries. In New York state, every one of the 62-counties has at least one Surrogate Court (New York and Kings Counties have two) to hear all types of matters related to decedents and their estates as well as certain types of guardianship proceedings and adoptions.
The law invests these powers to Surrogate Courts through the New York Surrogate’s Court Procedure Act (SCP). The section pertaining specifically to probate cases is NY SURR CT PRO § 201.3 and reads:
“The court shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein, over whom jurisdiction has been obtained as to any and all matters necessary to be determined in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires.”
What should I know before going to Surrogate Court?
If the deceased created a last will and testament, the court concerns itself with probate (the execution of the will), if the deceased left no will, the court concerns itself with the administration of the estate to find an executor. Hopefully, the deceased already created a will before his or her passing to help avoid lengthy delays in court over who should be the executor of the estate or which individuals receive certain assets.
Sometimes, courts may require executors to obtain a surety bond to act in such a capacity. These types of bonds are basically an insurance policy incase the executor misappropriated or takes assets from the estate meant for others. In these rare cases, the surety company will reimburse beneficiaries for such losses.
To obtain a surety bond, the proposed executor will need a good credit and financial background to qualify. If this individual cannot meet such standards, he or she may need to forfeit the right to act in such a capacity. Furthermore, the amount of the bond will vary depending on many factors, including the size and value of the deceased’s estate.
Often times, the deceased’s will may waive the need for such a bond but proposed executors will need to be aware of these types of concerns before going to probate court. Executors often hire estate attorneys to act as brokers in such matters to help get a favorable rate on such bonds.