FREQUENTLY ASKED QUESTIONS
About Probate Law in Rochester, NY

Probate FAQs

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1. What is probate?

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Probate is the legal process of transferring title to someone's assets after they pass away. The Probate process involves sorting out their assets, paying off any debts, and making sure everything is done properly. In New York, the Surrogate's Court oversees this process. They check the legitimacy of the Will, select someone to manage the estate, and ensure that the deceased person's assets are distributed according to their wishes when there is a Will or that’s in accordance with what New York State laws dictate when there is no Will.

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2. What is the probate process?

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​If you're dealing with someone's estate as an Executor, Administrator or beneficiary, you have probably been involved in the Probate of that estate. Many people aren't sure what Probate means, if it is necessary, or what it involves. When a loved one dies, you’ll need to file their will with the county Surrogate’s Court where they lived, as well as petition the Court to have someone appointed Executor. This starts the Probate process. Here is what you'll need to know about the Probate process in New York State and how you may avoid it. 

 

• PETITION FOR PROBATE: To begin the Probate process, the executor named in the Will (if there is a Will) or the Administrator (if there is no Will), must file a Petition with the Surrogate’s Court in the county where the deceased resided, together with a certified original death certificate and the original Will. The Petition includes details about the deceased, their family members, their assets, and their beneficiaries (who may or may not be family members).

 

• AN EXECUTOR OR ADMINISTRATOR IS APPOINTED: If the Will is deemed valid, the Court appoints an Executor, who is usually the nominated Executor in the Will. If the deceased did not leave a Will, the Court will appoint an Estate Administrator to manage the estate who is typically the surviving spouse, a parent, an adult child, or sibling. The Executor or Estate Administrator is responsible for gathering and protecting the assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries. 

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• NOTIFY HEIRS AND BENEFICIARIES: ​​The Petitioner must notify all interested parties, including heirs and beneficiaries of the Probate proceeding. This is typically done through a citation, which is a formal notice issued by the Court. In the alternative, the next-of-kin or the family can sign a document waiving this formal notice and consenting that the Will be admitted to Probate.

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• ​INVENTORY OF ASSETS: It is the responsibility of the Executor or Administrator to compile an inventory of the deceased’s assets. This accounting will include both Probate and non-Probate assets. If there are items that are of significant value, appraisals may need to be obtained. This inventory list must be filed with the Surrogate’s Court, which will ensure that all assets are accounted for before being distributed. The Court also charges a filing fee based on the value of the assets. This is one of the reasons to avoid Probate. If the deceased had a Living Trust, the Executor or Administrator would not have to pay the court filing fees.

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• PAY OFF DEBTS, TAXES, AND EXPENSES: ​The Executor or Estate Administrator is responsible to use the estate's assets to pay any outstanding debts, taxes, and fees (such as funeral expenses and attorney fees). Depending on the estate's value, State and Federal taxes may apply. If the decedent's bills exceed the available cash, the Executor or Administrator may have to liquidate assets to pay them.

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• CLOSING THE ESTATE: ​Once the assets have been distributed, the Executor or Administrator must file a Closing Statement with the Court, signifying the completion of the Probate process. Yes, it is a lot of paperwork, but that is what the Estate Planning attorneys at Ronald J. Axelrod & Associates and their experienced paralegals do.​

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​​3. What are probate assets?

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Probate assets are assets titled only in the deceased's name. Jointly titled assets, life insurance, IRAs and 401Ks are not individually owned assets, as they all have beneficiary designations which dictate to whom the assets are paid after you pass away. You cannot leave someone your IRA by saying so in your will. Those assets will be paid to the beneficiary you designated when you took out the IRA proceeds. Most people are surprised to learn that often a majority of their assets are by a beneficiary designation and not by their Will.

 

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4. Does my IRA, 401K, or life insurance benefits go through Probate?​​

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No, these are not considered Probate assets. When you took out your retirement accounts or your insurance policies you named a beneficiary. It's always important to occasionally check these accounts from time to time to make sure you still want to keep that person as a beneficiary.  ​​

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5. What is the difference between an executor and administrator? ​​

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An Executor is an individual you designate in your will to manage your estate The key distinction lies in whether the deceased left a will or not. If someone passes away without a will, the State of New York has a default will in place. In this case, the person appointed by the State to oversee the estate is known as Administrator.​​

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6. Is the probate process necessary?

Not all estates require a full Probate. Small estates that have been valued under $50,000 (excluding real property) can be settled through a simplified process called 'Small Estate Administration'. As stated above, if the deceased person had a trust or had jointly owned assets, the Probate process may also be avoided.​​

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7. Are there ways to avoid probate?

People often want to avoid the cost, expense, time-consuming tasks, and public process of Probate. There are many ways to avoid Probate including jointly owned property and use of trusts.​​