New York Estate Planning & Elder Law Blog
Most people should have a will. Wills are the legal mechanism for distributing property, naming guardians for children and exceptional individuals, and cancelling out debts, among other tasks. Having a will guarantees that you, rather than New York State, decide who gets your property and how your affairs would be wound down after you die.
In this series, we will explore all things that get done after a person dies to ensure that his or her final wishes are carried out in accordance with their will. Many people die without a will. There are laws in those instances too, that govern the distribution of property when individuals die without a will. The legal term for situations like that is intestacy. Someone who leaves a will before they die is legally known as the testator; while someone who dies without leaving a will is legally known as intestate. This series will be discussing testators and the distribution of property pursuant to a will only.
Understanding the language of probate
One of the most challenging aspects of the probate process is understanding its language. From the start, the word probate is a term of legal art. Simply, probate is the legal process for establishing the validity of a will. Wills are declared valid in Surrogate’s Court – the New York State Court with the power to make such a declaration. There is a Surrogate’s Court in each county in New York. All New York Surrogate’s Courts must apply New York’s laws for distributing an estate when the deceased person dies leaving their final wishes in a recording, called a will.
Wills appoint a very important person, called an executor, to actually administer the estate of the deceased person or testator (person who dies with a valid will). The main duty of the executor is to carry out the instructions and wishes of the deceased person according to the will.
Prior to the probate of a will, an executor has no authority in the decedent’s estate even if they are designated as executor in the will. An executor can initiate the process of probate by filing the proper paperwork with a New York Surrogate’s Court. Once the will is declared valid, the executor’s appointment is acknowledged, and the executor can get to the business of winding down the estate and making all gifts and distributions, during the estate administration process.
Estate administration refers to the process of collecting and managing the estate, paying any debts and taxes, and distributing the remaining property to the heirs of the estate. Two of the parties gifted in a will are the federal and New York State governments, who impose an estate tax on the overall estate at the time of the testator’s death.
An estate is the sum of a person’s assets, which include all legal rights, interests, and entitlements to property of any kind, less all liabilities at the time of death. Now that we have a common understanding of the terms associated with probate and estate administration, we can discuss how to help executors complete their responsibility in administering the estate of the deceased person. Check our next post for a discussion about digital assets.