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What is Probate?

When a person dies, who inherits their estate depends on whether there is a Will, who the living relatives are and their relationship to the deceased.

When the person who died (the Decedent) had a Will,  the Will must be filed in Surrogate’s Court and admitted (approved) for probate. Probate is the process of proving that the Will is valid (legally acceptable). During probate, the Will is proved to the satisfaction of the Court that it’s the Last Will and Testament of the deceased. Once the Judge in Surrogate’s Court, who is called the Surrogate, is convinced that the Will is legally acceptable, the Executor, named in the Will, is appointed to give out the estate (everything of value) that belonged to the deceased and carries out their wishes outlined in the Will. The Surrogate’s Court oversees this process.

Filing for Probate

The Executor files the original Will and a certified death certificate, a document that has the date and location of a person’s death, along with a form called a probate petition and other supporting documents in the Surrogate’s Court in the county where the deceased lived, and had their primary residence.

The family members entitled to a share of the deceased person’s property are called distributees. The Decedent’s distributees (heirs who are entitled to a share of the deceased person’s property) must also be listed in the probate petition. Distributees must be served with a notice, called a citation. The citation gives the Surrogate’s Court jurisdiction over them. This means that the Surrogate’s Court has the power to decide the rights of the people involved. A citation tells the distributee that the Executor filed for the legal right to manage the Decedent’s estate. The distributee can sign a waiver (giving up their rights) and consent to the appointment of the Executor or come to court to disagree with the appointment. Beneficiaries who will inherit something under the Will must be notified (officially informed) of the probate proceeding.

The filing fee is based on the dollar value of the estate.

What if there isn’t a will? What is an Administration?
f the Decedent died without a Will, then an administration proceeding should be filed. If the Decedent had less than $50,000 of personal property with a Will or without a Will, then a small estate, also called a Voluntary Administration proceeding, can be filed instead.

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