Estates & Surrogate’s Court Assistance

Please review some helpful terms below to better understand some of the processes and paperwork you will encounter when working with the Surrogate’s Court.

 

Administration–The Court proceeding when a person dies with no will (intestate)

Administrator–The person appointed by the court in an administration proceeding to manage and settle the estate of a person who died without a will

Affidavit–A written statement sworn to in front of someone legally authorized, like a notary public

Citation–A legal notice issued by the court to get jurisdiction over someone and give him or her  notice of the proceeding

Decedent–The person who has died

Devisee–A person receiving real property (such as a house) under a will

Distributee— A person who has a right to share in an estate if there is no will

Domicile–A person’s main or permanent home

Domiciliary–A person who has his or her main or permanent home in a particular location, like New York State

Executor–A person named in a will and appointed by the court to carry out the will’s instructions and handle financial matters

Fiduciary–A person who must use a high standard of care when he or she manages another person’s money or property. Executors and Administrators are fiduciaries.

Intestate–To die without making a will

Legatee–A person receiving property under a will

Probate–A court proceeding to decide if a will is genuine (real). This case is started after a person who leaves a will dies and a probate petition is filed.

Small Estate Proceeding–A court proceeding for an estate less than $50,000

Surrogate’s Court–The court that has power over the affairs of someone who has died, guardianships, and oversees fiduciaries

Testate–Having made a will or having died leaving a valid will

Voluntary Administrator–A person  appointed by the Court to be in charge of a small estate

Will–A legal paper that lists a person’s wishes about what will happen to his or her personal property after death and names an executor to carry out those wishes

 

For a full glossary of legal terms provided by the New York State Unified Court System click on the below link.

A death certificate is a paper that records the official date and location of a person’s death.

The funeral director usually purchases several copies for your use.

In some cases, you might need a “certified” copy of the death certificate. A certified copy has security features that proves that the document is genuine. Depending on where the death certificate is from a certified copy can have a watermark, a raised seal, micro-printing, multi-colored background, heat sensitive ink, etc. A certified copy is good for legal purposes such as settling an estate or claiming insurance benefits.

If a loved one died in New York City

If the person died in New York City (Bronx, Brooklyn, Manhattan, Queens, and Staten Island), you can order a certified copy of the death certificate online or by mail from the Office of Vital Record.

If a loved one died outside of New York City

If the person died outside of New York City but in New York State, you can order a certified copy of the death certificate online or by mail from the New York State Department of Health.

If a loved one died outside of New York State

If the person died in the United States but not in New York, contact the vital records or death records office of the state where the person died.

If a loved one died abroad

If the person was a U.S. Citizen and died outside of the United States, contact the U.S. Department of State for a Consular Report of Death of a U.S. Citizen Abroad.

 

Has the Police Department Sealed the Apartment?

Bronx Residence? Click Here

Manhattan Residents? Click Here

Staten Island Residence?  Click Here

Queens Residence?  Click Here 

 

How to Properly Access an Apartment Sealed by NYPD and Recover Invoiced Property in New York City Surrogate’s Courts

Last Will and Testament

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A Last Will and Testament, also called a Will, is a written statement of what a person wants done with their property after they die. To be a valid Will it must meet certain requirements.

A Will appoints an Executor and gives directions as to how property should be divided. Wills can also name a guardian for children.

The Will should be kept in a safe place where it will be easy to get to if it is needed. If a lawyer prepared the Will, you may want to discuss with the lawyer where to obtain the original Will. In some counties, the Surrogate’s Court has a vault where Wills are stored for safekeeping until a person dies.

After a person dies, the Will must be filed in Surrogate’s Court and admitted to probate (determined by the Judge to be valid) before the wishes of the person who died can be followed. If the person who died had less than $50,000 of personal property, then a small estate proceeding (also called a voluntary administration) can be filed instead.

A Will is a confidential document until the person dies. Once the Will is admitted to probate or a small estate, it becomes a public document that anyone can see and read.

IMPORTANT: Do not remove the staples from the Will when making copies. Doing anything to the Will may be a reason to invalidate it. If the staples were removed, you must tell the Court in a signed and notarized affidavit why they were removed, where it has been kept since it was signed, and that you believe no substitutions or changes have been made since its signing.

If There Is No Will

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When a person dies without leaving a Last Will and Testament, it’s said that they died intestate. When a person dies intestate, that person’s property is distributed according to the law.

Who gets what depends on who the living relatives are and their relationship to the Decedent (the person who died). The relatives who are entitled to a share of the Decedent’s estate when there is no will are called “distributees”.

• If the Decedent had a spouse (husband or wife) and no children, the spouse receives everything.
• If the Decedent has children but no spouse, the children receive everything.
• If the Decedent has a spouse and children, the spouse receives the first $50,000 plus half of the balance. The children receive everything else.
• If the Decedent has one or both parents but no spouse or children, the parent or parents receive everything.
• If the Decedent had brothers or sisters, but no spouse, children, or parents, the brother or sisters receive everything.

IMPORTANT: There are special rules about what happens if someone dies before the Decedent.  Out pro bono attorneys can explain that to you.

About Decedent’s Children
For children to inherit from their parents, New York State requires that there is a legal parent-child relationship. In most cases this is not an issue but it’s not always clear.

• Adopted children are treated just like biological children.
• Foster children and stepchildren are not children for estate purposes unless they were legally adopted.
• Children born after the Decedent are children for estate purposes.
• Even if the parents are not married, children born outside of marriage, also called non-marital children, are children of their birth mother and are children of their father for estate purposes if paternity is established.
• Grandchildren will inherit only if their parent (the Decedent’s child) dies before the Decedent died.

 

Safe Deposit Box Petition Program

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The Safe Deposit Box Petition program is used to ask the Surrogate’s Court to see what is in the safe deposit box of a person who died. The program helps you create the court forms you need to look for a will, burial plot deed, insurance policies and to make a list of all the items inside the box. When you finish the program you will be able to print a Petition, Proposed Order and Instructions. This form is filed in Surrogate’s Court.

You CAN’T use this program if:

• The person that died did not have a New York State address.
• You want to take personal items, like money or jewelry, out of the box.

You will need the following information with you when you use this program:

• The name and address of the person who has passed away.
• A copy of the death certificate or medical examiner affidavit.
• The name, address, and county of the bank where the safe deposit box is held.

You Can Use Do It Yourself (DIY) Forms:

• you’re a court user and you don’t have a lawyer;
• you’re a legal services provider;
• you’re a pro bono lawyer. Pro bono lawyers filing a DIY Form must submit this pro bono affirmation.
• you’re from a low-bono (reduced fee) program recognized and authorized to use the DIY Form programs by the NYS Courts Access to Justice Program. You must submit this low-bono affirmation with the filing.

Proceed to Safe Deposit Box Petition Program

You will be taken to the NY Court’s partner website called LawHelp Interactive. You can “Sign Up” for an account or go directly to the program without signing up by clicking on the green “Get Started” button. Then check to agree to the Terms of Use and click on “Continue” to begin the program.

What is a Small Estate?

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• When a person dies (the “Decedent”) with less than $50,000 of personal property, the Decedent’s estate is considered a small estate and the Surrogate’s Court proceeding that is used is called a Voluntary Administration. This proceeding is used whether or not the Decedent executed a Last Will and Testament during his or her lifetime.
• Personal property includes bank and retirement accounts, cars, stocks, bonds and anything of value that has the Decedent’s name alone, with no joint owner and no beneficiary designation. It does not include real property like houses, land, and buildings.
• If the Decedent owned real property in their name alone and executed a Last Will and Testament then a probate proceeding should be filed.
• If the Decedent did not execute a Last Will and Testament, and Decedent’s only asset is real property, then no proceeding may be required.
• If the Decedent didn’t execute a Will, didn’t own real property, and Decedent’s personal property is less than $50,000 in value, then a Voluntary Administration (or small estate proceeding) would be appropriate.

After a person dies someone must be appointed to take care of anything of value the deceased may have left behind.

Some people write Wills so that they can appoint someone they know and trust. However, when a person dies without writing a will, a judge from Surrogate’s Court will follow NYS law and appoint someone. It is usually the next of kin but not always.

If the total value of the decedent’s personal property is less than $50,000, the next of kin or the person named as an Executor if there is a Will, can apply to become the Voluntary Administrator.  With a Will or without a will, the person appointed is known as the Voluntary Administrator.

Voluntary Administrators are fiduciaries and have a fiduciary duty to the estate. This means that they have a legal duty to act faithfully towards the estate and not put their interests ahead of that duty.

Once appointed, the Voluntary Administrator will be given certificates which will allow him/her to collect assets. It will be up to the Voluntary Administrator then to distribute the assets according to the law.

Voluntary Administrators, Administrators and Executors are responsible for protecting the property until all debts and taxes are paid and to promptly and efficiently administer the estate.

In general, fiduciaries have three responsibilities:

1. Collect, inventory, and appraise all the assets of the estate.
2. Pay the bills, taxes, estate expenses, and creditors of the person who died.
3. Transfer property according to the Will or, if there is no Will, then according to the laws of intestacy.

If there is a Will, the Executor files the original Will and a certified copy of the death certificate with the small estate affidavit petition and other supporting documents in the Surrogate’s Court in the county where the Decedent had their primary residence.

Small Estate proceedings are filed in the Surrogate’s Court in the county where the Decedent was “domiciled” before they died. This means the county where the Decedent lived and considered their primary home address before they died. If the Decedent had more than one residence, the domicile is that place where the Decedent intended to return. A nursing home is not considered a “domicile.” In cases where the Decedent lived in a nursing home before they died, file the estate proceeding in the county where they lived before entering the nursing home even if they no longer own or rent the home. This determination is often nuanced and depending on the Court there may be a different result if the decedent no longer had a home to return to in another County. It will often make sense to contact the Court to discuss and ensure you are filing in the correct County, if the decedent died inpatient in a nursing home.

 

Small Estate Affidavit Program

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The small estate administration is a simplified court procedure available if the person who died (the “decedent”) did not have many assets. You can ask the Surrogate’s Court to give you permission to administer their estate and distribute their property to people who have a legal right to inherit.  To do this you need to file a form called an “Affidavit of Voluntary Administration,” also known as the “small estate affidavit.”  This free program will help you create the affidavit that you will need to file in Surrogate’s Court.

You can use this program if:

• If the decedent (the person who died) had $50,000 or less in personal property.
• If the decedent owned real property, he/she owned it jointly with someone else and you don’t plan to sell the real estate.

Please also note that e-filing has been instituted in all Surrogate’s Courts statewide.  All Surrogate’s Court proceedings, including the Small Estate Affidavit Program, should be e-filed.

The Office of Court Administration has posted a video on the e-filing training program. While it is not required, it is strongly recommend to for anyone unfamiliar with the e-filing process.

Information Checklist

You will need the following information with you when you use this program

You Can Use Do It Yourself (DIY) Forms:

• you’re a court user and you don’t have a lawyer;
• you’re a legal services provider;
• you’re a pro bono lawyer. Pro bono lawyers filing a DIY Form must submit this pro bono affirmation.
• you’re from a low-bono (reduced fee) program recognized and authorized to use the DIY Form programs by the NYS Courts Access to Justice Program. You must submit this low-bono affirmation with the filing.

Proceed to Small Estate Affidavit Program

You will be taken to the NY Court’s partner website called LawHelp Interactive. You can “Sign Up” for an account or go directly to the program without signing up by clicking on the green “Get Started” button. Then check to agree to the Terms of Use and click on “Continue” to begin the program.

 

What is Administration?

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• When a person dies without having executed a Last Will and Testament,the proceeding that is filed in Surrogate’s Court is generally called an Administration proceeding.
• If the Decedent died having executed a Last Will and Testament, then a probate proceeding should be filed (See Filing a Probate tab.)
• Whether a person dies with or without a Will , if they own less than $50,000 of personal property, then a small estate, also called a voluntary administration proceeding, can be filed instead (See Filing for a Small Estate tab).

Administration is the process where the Surrogate’s Court issues Letters of Administration to an Administrator. The Administrator must be a qualified distributee of the Decedent. Letters of Administration gives the Administrator the authority to collect and distribute the Decedent’s property according to the laws of intestacy.

If the Decedent’s only asset is real property (real estate), it may not even be necessary to file an administration proceeding depending on who survives the Decedent and the type of building or land involved.

By law, real property vests in the Decedent’s distributees at the time of the decedent’s death which makes the distributees the owners of the property. It might be a good idea to contact a real estate attorney and the tax office to get more information.

Filing for Administration

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New York has specific rules for who can file and become an  Administrator. In general, the person who is the closest distributee to the Decedent will file the petition with the Court and become the Administrator.

The closest distributee files a copy of the paid funeral bill, a certified copy of the death certificate with the Petition for Letters of Administration and other supporting documents in the Surrogate’s Court in the county where the Decedent had their primary residence.

You may be able to file the papers over the internet using NYSCEF, the New York State Courts Electronic Filing system. Check to see if you can do this on the e-filing County List for your Surrogate’s Court.

The Decedent’s other distributees must also be listed in the petition.

These Distributees must also be served with a document called a Citation.  A citation gives the distributees notice of the proceeding and gives the Surrogate’s Court jurisdiction over them. This means that the Surrogate’s Court has the authority to determine the rights of the people involved. A citation tells the distributee who is asking for Letters of Administration to manage the Decedent’s estate. Alternatively, the distributees can sign a waiver and consent to the appointment of the Administrator.  If they do not sign a waiver and consent they have the right to come to court to disagree with the appointment. An Administrator may also have to post a bond in certain circumstances, or all the parties may ask to waive that requirement.

A filing fee is normally required and is based on the size of the estate.

What is Probate?

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• If the Decedent had a Will then the Will must be filed in Surrogate’s Court and admitted to probate.  Probate is the process of proving that the Will was made in accordance with the law.
• If the Decedent died without a Will, then an administration proceeding should be started.
• Even if there is a Will, and the Decedent had less than $50,000 of personal property (personal property means anything that can be owned other than land, houses or condos), then a small estate proceeding, also called a voluntary administration proceeding, can be filed instead.

Once the Surrogate (the Judge in Surrogate’s Court) determines that the Will is valid, the Executor named in the Will is appointed to take charge of the Decedent’s estate, pay any outstanding debts and taxes and then distribute the estate, and carry out the wishes of the person who died. The Surrogate’s Court oversees this process.

Filing for Probate

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The Executor (or any beneficiary) can file the original Will and a certified copy of the death certificate with a probate petition, a stamped paid funeral bill, and other supporting documents in the Surrogate’s Court in the county where the Decedent had his/her primary residence. You may be able to file the papers over the internet using NYSCEF, the New York State Courts Electronic Filing system. Check to see if you can do this on the e-filing County List for your local Surrogate’s Court.

The Decedent’s distributees (those persons who would share in the estate if there was no will) must also be listed in the probate petition.

The distributees and certain other people are then served with a notice issued by Court, called a citation. When properly served the Surrogate’s Court then has the authority to determine the rights of the individuals who have interests in the estate. Distributees can sign a waiver and consent to the appointment of the Executor or come to court to disagree with the appointment.

The filing fee is based on the size of the estate.

 

Surrogate’s Court Checklists

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These checklists formulated by the Fourth Judicial District are supplied for your use in completing petitions of common proceedings filed in Surrogate’s Court and for which there are official forms. A checklist works through each paragraph of any particular petition. It is anticipated that the 4JD Checklist Committee will annually update these forms so please contact the court for information as to which checklists may have been changed, corrected or added by the committee within the past year.

General Forms

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Administration Forms

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Probate Forms

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