During difficult times of grief in New York you may need a New York probate lawyer to help you with probate issues.
Ortiz & Ortiz LLP can help you with this complex legal process so that you can divide the property and manage the estate. Call us now and let us make sure your interests are protected. We have been proudly serving clients throughout Brooklyn, The Bronx, Manhattan, Queens and Staten Island for over 30 years.
The best New York probate lawyer near you
At Ortiz & Ortiz we understand how difficult it is to deal with all the legal issues that come with probate. Likewise, we understand that the last thing a person wants after losing a loved one is to go through lengthy court proceedings and hence the probation process can be a harrowing one.
For this reason, our probate attorney in New York, Norma E. Ortiz will help you in all matters related to this process. This includes:
- Contested wills;
- Missing assets;
- Problems with executors;
- Any other problems that may arise.
Our goal is to ensure that things get resolved with minimal stress and in a timely manner.
What is probate
This is a process in which the estate of a deceased person is administered through a court of law. In simple terms, it is the process by which the court validates a person’s will.
The purpose of Probate in New York
The main purpose of Probate in New York is to try to minimize the possibility of fraud after someone dies. Additionally, it ensures that creditors and taxes are paid after someone passes away and also allows the identification and appraisal of all property in the estate.
Not all assets are subject to probate
In the same way as not every estate has to go through the full-blown probate process, not all assets are subject to probate. Let’s take a look at some assets that fall under this definition:
- Joint tenancy: When a joint tenant dies, the surviving tenant becomes the owner of the entire asset. This does not require a court order as it is the right of the survivor.
- Community property with right of survivor-ship or tenancy by the entirety: These forms of property ownership work in a similar way to joint tenancy and are only available to married couples. Therefore, these don’t need to go through probate.
- Beneficiary designations: Retirement and life insurance policies come with their own forms that allow the policy owner to stipulate who will receive the policy.
- Transfer-on-death accounts: Since some brokerage and bank accounts can also have named beneficiaries, the owner of the account can fill out forms directly with the company to determine who should get these account assets when the owner passes away.
New York Probate Process
In New York state, probate is initiated by the decedent’s executor as designated in their will.
- By submitting the will to be authenticated by a judge the executor petitions New York’s surrogate Court.
- Once the will is verified, the executor will have legal authority to oversee the administration of the decedent’s estate. This authority will be granted by the judge.
Make no mistake, the New York State probate process can be really complex and you will need an experienced probate lawyer. Among the documents required for the process are:
- The original will;
- A formal request;
- Witness affidavits.
- A proper notice to family members and others are also included among the papers required in the New York State probate process;
The probate process of a last will takes place in the Surrogate’s Court. For the most part, there is a surrogate court located in every county in New York:
- New York County (Manhattan);
- Bronx County;
- Queens County;
- Kings County (Brooklyn);
- Richmond County (Staten Island);
Note: You can review the full list of Surrogate Court locations with addresses and phone numbers here. Remeber that probate procedures can vary from state to state.
Two primary sources of law guide the New York probate process:
- Surrogate’s Court Procedure Act (SCPA)
- Estates, Powers and Trusts Law (EPTL)
Together with other court rules and decisions they form the basis for probating a New York will.
When a person dies without a will we are talking about an intestate estate. Our New York intestacy law blog will provide you with all the necessary information on this subject.
Typical process for probate in New York
- The will is filed in a surrogate’s court where the decedent lived.
- The will is promptly filed after the death.
- A petition for probate is filed.
- Court issues NY letters testamentary to the representative or executor.
- There is a legal deadline for creditors to file a claim.
- Within the first 6 months after being appointed, the executor has to file an inventory of the estate’s assets.
- With an official order the court distributes the estate’s property to the beneficiaries.
- The executor receives legal fees for their services based on the estate’s size.
Whether the proceeding is subject to testate or intestate administration, the Surrogate Court requires detailed information about the deceased, assets, and the names and addresses of close family members. This is not always easy to provide, especially when the only surviving relatives are cousins or distant relatives whose connection to the deceased is difficult to prove.
These relatives may be in other states or countries and may not have had contact with the deceased for years or maybe even, never before.
To solve these issues, Kinship hearings are often used. To demonstrate kinship to the decedent, these hearings require that the Court is provided with the following:
- Certified records such as birth, marriage and death certificates;
- The testimony of disinterested people.
Although most probate cases do not involve estate litigation such as challenging a will, it does occasionally occur and it is convenient to be prepared for it.
Your best option in these cases is to have an experienced New York probate lawyer like Ortiz & Ortiz by your side who has more than 30 years of experience. These are not simple cases and will require the intense efforts of trained attorneys to obtain results.
Frequently Asked Questions about the probate process in New York
These are some of the questions our New York probate lawyer receives at the office. Take the following information for general information purposes and remember that to properly serve you in your case it is essential to know the circumstances. Contact our offices today by email, phone or book your virtual consultation.
What are the different types of probate in New York?
In New York there are 2 procedures that can occur after a person’s death:
- Probate; or
- Administration proceeding: These occur in cases where a decedent dies without a will (intestate) and will be used to appoint an administrator who will distribute the decedent’s assets following New York state laws.
Common Misconceptions About The Probate Process
- There is no need to hire an attorney: While not required by court, probate can quickly become a complex matter. Therefore, it is more than recommended and even necessary to hire an attorney in many cases.
- My case will be solved quickly: On average, probate cases in New York take about a year to close. Since COVID, we have experienced an even slower process.
- Probate is not required if a decedent leaves a last will and testament: The reality is that probate exists precisely to ensure that a person’s wishes embodied in a will are fulfilled.
Are there alternatives to avoid probate in New York?
Yes, there are options to avoid the often frustrating, costly and lengthy probate process and therefore, avoid involving loved ones in this process:
- Payable or transfer on death designations for certain accounts. In this scenario an individual can appoint a beneficiary to receive securities or funds upon the account owner’s death.
- Joint ownership: In this scenario the surviving owner of a property automatically inherits that property. Since ownership is directly transferred over, there is no need for the property to go through probate.
- Placing assets and funds into a trust: One of the easiest ways to avoid probate is by placing assets and funds into a trust so that the assets are passed directly to beneficiaries through its appointed trustee.
Note: As mentioned, one common way to avoid probate is by creating a revocable living trust-based estate plan during your life to hold your assets. The assets held inside that revocable living trust will not go through probate. While the revocable living trust is a powerful tool to avoid probate, you need more than just words on a piece of paper to avoid it. Aside from asset transfers there are other steps to be taken. Contact our attorney so we can guide you through the entire process.
Do I really need an attorney to handle my probate matter?
Although no law requires you to do so and you can handle your case yourself, it is highly recommended to hire an attorney. Probate matters can be really challenging and it will always be best to have an experienced New York probate lawyer handle your case. Some difficulties include contesting wills, defects in the language of the will or difficulty in locating interested parties for jurisdictional purposes among many others.
What problems could you face during probate?
- An executor resigns from office: Having a great amount of responsibility, if a person decides not to fulfill their obligation as executor, the alternate executor will be appointed if one has been designated in the will and/or a court will appoint another person to administer the deceased’s will.
- The will itself is called into question: Beneficiaries or heirs may dispute the validity of the will or there may even be multiple versions of a will.
- An executor fails to properly manage a decedent ‘s estate: This may lengthen the probate process even further as the executor must be held accountable for their breach of fiduciary duty.
Do I need to probate my relative’s will?
The will must be probated only when the decedent died possising assets valued at $ 50,000 or greater. Please note that this does not include assets for which there are designated beneficiaries such as insurance proceeds not payable to the estate or joint accounts.
Note: In some cases, probate may not be necessary, such as when the decedent owned only real estate. An estate valued at less than $ 50,000 qualifies for small estate treatment.
How long does the probate process take?
This really depends on the complexity of the probate and schedule of each individual court.
A simple probate may take a few weeks but when there are complications such as contested matters, the process can be lengthy.
Our experienced New York probate lawyer at Ortiz & Ortiz will make sure the process is completed as soon as possible.
How much does the probate process cost in New York?
These costs associated with the probate process vary greatly depending on the complexities of each specific case.
- In cases of contested probate matters the costs will be much more than in those that are simple. The legal fees associated with a simple probate will be comparatively modest compared to those of a complex probate case.
In addition to legal fees, the Surrogate’s court charges probate filing fees based upon the gross value of the estate. You can check these values in the following table.
NY Surrogate’s Court Filing Fees
|Value of Estate or Subject Matter||Fee Rate|
|Less than $10,000||$45.00|
|10,000 but under 20,000||$75.00|
|20,000 but under 50,000||$215.00|
|50 000 but under 100,000||$280.00|
|100,000 but under 250,000||$420.00|
|250,000 but under 500,000||$625.00|
|500,000 and over||$1,250.00|
New York probate lawyer fees
There is no fixed fee for probate proceedings in New York so it depends on the lawyer and the client to agree on a fee. In many law firms you will find 3 types of rates:
- Hourly: The attorney’s experience, location and expertise together with other factors will determine the hourly rates. In this scenario, the estate is billed only for the services performed by the law firm. In many cases, some of the work will be assigned to a paralegal and billed at a reduced rate.
- Percentage: In this case, the attorney’s fees are equal to a percentage of the value of the estate.
- Flat fee: This is usually assigned in cases where the required services can be clearly delimited. If additional legal work is required it will normally be charged at hourly rates.
Call us and let us know your case so we can give you a personalized response. Many of our clients sense a feeling of relief after having a first legal consultation with us. We work hard to offer the best service and more than 30 years have shown us the best legal strategies to obtain results.
Get in touch with our knowledgeable New York probate lawyer
Our attorney Norma E. Ortiz has more than 30 years of experience in estate planning matters and probate proceedings. She can help you with:
- Estate and trust administration;
- Tax fillings;
- Probating wills;
- Determining and collecting assets;
- Matters involving unknown heirs;
- Accounting for the estate;
- Any other issues that can arise in probate proceedings.
The estate lawyer will likely provide a broad range of services when representing the administrator or the executor of an estate in New York. Among these we find the following:
- Drafting and filling all petitions;
- Assisting with the sale of real estate owned by the deceased;
- Evaluating the date of death value;
- Finding and securing assets of the deceased;
- Tax elections and fillings;
- Assisting with the sale of personal property and also ensuring that all interested parties are included in probate papers;
- Collecting any life insurance proceeds of the deceased.
- Litigation services in case those are needed for contested wills, administration or accountings as well as relief against a fiduciary and spousal elective share disputes.
There are many areas involved in a probate process and many problems that can arise. Ortiz & Ortiz will make it easy for you by speaking honestly about your case. Our offices are in Queens and Manhattan, however we provide virtual consultations in all five boroughs of New York and Long Island.
Call us today and let us know your situation, time is key in these cases.