If you die without a Last Will and Testament (“Will”), then the State will appoint someone to administer your “estate”. That means the State will decide who will be put in charge of collecting all your assets, your “stuff”, paying off all your creditors from the “stuff” and then distributing what is left to your closest living family members. For an example of New York State’s Will that has been written by the State for people who don’t have one, click the link below.
In New York State if the value of your “personal property”, the things in your name alone, i.e., not jointly owned and not a beneficiary designated instrument, is more than $30,000.00, then your Will is subject to New York State’s probate process. Those assets that are “Jointly Owned With Right of Survivorship” and/or assets that have a beneficiary designation, are not included when computing the $30,000.00 for the value of your personal property. Assets such as a bank account, a car, or a snowmobile that have only your name on them are your “personal property”.
Once your nominated Executor has determined that the value of your “personal property” is greater than $30,000, they then have to prepare and submit a petition, along with the original signed copy of the Will to the Surrogate’s Court for judicial supervision. The Judge will make sure that the original document presented to the Court is valid and may then ask the nominated Executor to mail out a letter with a copy of your Will to your family members, including your spouse and children, your parents (if alive), your brothers and sisters, your nieces and nephews, your aunts and uncles and your first cousins to ask them if they object to your nominated Executor serving and if they waive any interest in your estate. If someone objects to the Will, or the Executor or fails to send back the signed letter, they will be determined to have Contested the Will. When all the letters are signed by the individual family members and returned to the Court, then your Executor receives the authority to collect all your assets.
Once the assets are collected, the estate is held open for 7 months during which time your creditors have first right to receive payments from your estates. At the end of the 7-month period, your Executor accounts to the Court for all money received and disbursed, and, if the Court agrees with the accounting, then the assets go to the people you have identified in your Will.
This Probate process is the State of New York’s system of rules that are used to ensure an orderly disposition of your assets under the control and supervision of the Court.
In New York State, to avoid probate, make sure you have a Last Will and Testament in place and make sure that the value of your “personal property”, i.e., the things that are in your name alone on the date you die, are worth less than $30,000.00.