Probate & Estate Administration

Last WillSurrogates Court

The Will serves as the guidelines for handling the estate, which is controlled by the executor.  Typically, the named executor in the will petitions the Surrogate’s Court, with the help of an estate attorney, to have the will admitted to probate and the named executor appointed as such by the Court.  The petition is filed in the probate department.  Admitting the will to probate means proving that the will is valid.  The will must be properly executed; the testator must have possessed testamentary capacity (the necessary mental capacity to execute a will); the will must not have been revoked by the testator; the testator had to be acting under her own free will (no undue influence); and the will must not be the product of fraud.

Administering the Estate Where the Decedent Died Intestate

If a person dies without a will, then the estate is distributed according to the laws of intestacy which are laid out in New York’s Estates, Powers, & Trusts Law (EPTL).  With no will, the estate representative is known as the administrator.  Although anyone with a monetary interest may petition the Court to have an administrator appointed, New York’s Surrogate’s Court Procedure Act (SCPA) lays out the order of priority as to who may serve as administrator: