The Probate Process

The Probate Process involves a “proving” of the deceased’s last Will, meaning it is the job of the Surrogate’s Court to decide whether the Will is valid. If a deceased person dies intestate – that is without leaving a valid Will – then the estate will be distributed in accordance with the intestate laws. The court will appoint an administrator, whose duties are similar to those of the executor, who attends to the details of protecting the estate if the decedent had left a proper Will.

In order to initiate a probate proceeding, it must first be determined whether the decedent left a Will. In order for any action to be taken on the Will, the executor named under the Will must ask the Surrogate’s Court to approve the Will as the last Will of the deceased. If for some reason the named executor does not offer the Will for probate, any interested party, even a creditor of the deceased, may do so. The next step in the process is to complete and submit a proper Petition to the court. If the decedent left a Will, then a Petition for Probate must be filed. If the decedent died intestate, then a Petition for Letters of Administration is used. Depending on the type of proceeding and what is involved, the court might require the submission of certain documents with the Petition, such as a death certificate and affidavits of attesting witnesses.

After proper notice has been given to heirs and interested parties and no one objects to the Petition, and all required documents have been submitted to the court and are in order, the court will appoint the executor named in the Will (or the administrator named in the petition) to be the legal representative of the deceased’s estate. Once formally appointed by the court, the executor or administrator will take legal title to all of the deceased’s probate assets. These assets include all bank accounts, securities, and real estate individually owned by the decedent. The executor/administrator is the person that is responsible for all aspects of settling the estate, including paying any debts and taxes, dealing with claims against the estate, and ultimately distributing the estate property to the beneficiaries.