Chapter One: Understanding The Probate Process In New York

What Exactly Is Probate, And Why Does It Matter In New York?

The probate process in New York is the means through which a person’s Last Will and Testament is validated by the court, and the executor named in that will is officially appointed. It’s a legal safeguard, not just a formality. Probate ensures the will is legitimate, that no one was coerced or taken advantage of, and that the right people are notified and given the opportunity to contest it if something seems off.

A common misconception is that having a will avoids probate. In fact, it’s the opposite: your will is the document that gets probated. If you die without a will, your estate still goes through a court process (called administration in New York), you just don’t get to decide who’s in charge or who receives your assets. The law chooses for you.

It’s equally important to understand what a will doesn’t control. Your will only governs assets held in your individual name without a beneficiary designation. For example:

• Joint bank accounts pass directly to the surviving owner.
• Real estate owned jointly with right of survivorship transfers to the surviving owner automatically.
• Accounts with designated beneficiaries, such as retirement accounts, life insurance policies, or even bank/investment accounts if you’ve named beneficiaries, pass directly to those beneficiaries. Your will has nothing to do with them.

Probate exists to protect you and your closest relatives. Imagine someone in declining mental health being pressured to sign something they don’t understand. Probate ensures that any suspicious documents can be challenged, and that the people who should be notified—typically a spouse and children—are given the chance to speak up.

Probate can undoubtedly involve some cost and delay, but its purpose is fundamentally protective.

What Probate Involves

Legally, probate refers specifically to proving the validity of the will in court and appointing the executor. But many people use the term in a way that’s broader and describes the entire estate-settlement process that follows, which can take months or even years. This broader process includes:

• Identifying and collecting assets
• Paying debts and final expenses
• Filing income and, in higher-net-worth cases, estate tax returns
• Ultimately distributing assets according to the will

So while validating the will is the critical first step, the real work of settling an estate continues long after the court appoints the executor.

Key Documents Needed For Probate

To get started, the executor or family generally needs:

• An original death certificate
• The original will (if one exists)
• A clear picture of the family structure, beginning with spouse and children; if none, then extending outward to more distant relatives
• A general understanding of the person’s assets, especially those that pass through probate

Initially, the court only requires information about probate assets, but once an executor is appointed, they will need access to information about all assets, both probate and non-probate, to properly administer the estate and make distributions.

The Probate Process

Once the necessary documents are gathered, the attorney prepares a set of court filings. These are signed by the executor and by any family members who must consent. If everyone agrees, the process is relatively straightforward:

Court Filing

The paperwork, will, and death certificate are submitted.

Court Review

The court reviews the documents and, if everything is in order, admits the will to probate.

Appointment

The court issues Letters Testamentary, the executor’s official proof of authority.

However, if a family member refuses to sign their consent, often because they’re being disinherited or believe they should receive more, the process involves an additional step. The court issues a citation, essentially a summons, requiring that person to appear in court on a specific date if they have objections.

Not liking the terms of a will isn’t grounds to challenge it. There are limited legal bases to dispute a will, and many people who refuse to sign a consent still don’t pursue a challenge. Once the court is satisfied that proper notice was given and no valid objections exist, the executor is appointed.

What The Executor Handles Next

The executor’s work includes:

• Obtaining a tax ID number for the estate
• Closing or transferring bank and investment accounts
• Filing final tax returns
• Paying debts and expenses
• Distributing assets according to the will

This phase is often what people think of when they talk about probate, even though it extends beyond the technical definition.

The Timeline For Probate

How long probate takes varies significantly based on the county, the complexity of the estate, and the cooperation of family members. In counties like Nassau and Suffolk, for example, even the smoothest cases take time. Assuming everyone agrees:

• It may take about 30 days after death just to gather documents and prepare filings.
• Once filed, courts currently take around three months to issue Letters Testamentary.

This means that even in the most efficient scenario, you’re looking at a minimum of about four months from the date of death. If there’s a contest to the will, overseas relatives who must be served, or questions about the validity of the will, the process can take years. Less populated counties Upstate can be faster (sometimes a month or less) simply because they have fewer cases.