Common Terms Used in the Probate or Administration of a New York Estate
While it is ideal to hire a NY estate lawyer to navigate through the probate process, due to financial constraints it may not always be an option. For that reason, in estates where the fact pattern is not too complex, some people choose to take a stab at probating a will on their own. Indeed, the language adopted in wills and Surrogate Court forms can be challenging for non-lawyers to understand.
The terms contained in a last will and testament of the deceased or the language prescribed on probate and administration forms is at times difficult for lawyers to comprehend. When attempting to interpret a will or a trust, don’t fret. The following is a list of the most common terms you will encounter in the probate of a NY estate:
Administration – when someone dies without a will, the process of opening an estate in NY is coined “administration.” The appointment of an administrator, not an executor, is necessary. The Surrogate’s Court filing fee for opening an estate is determined by a sliding scale, just as it is in a probate proceeding. For estates valued at five hundred thousand dollars or more, the filing fee is $1,250.00.
Assets: this term encompasses all property of the decedent, including real estate and personal property. If you are shopping around for an estate lawyer in NY, a frequent question you will be asked is what are the assets of the estate? Your answer will help the probate lawyer determine the difficulty he or she will encounter in transferring ownership of a certain asset from the decedent’s name to the estate.
Beneficiary: an individual or entity named in the decedent’s last will and testament to inherit an item, whether it be money or real estate, from the deceased’s estate. For example, “I give my sneaker collection to Anna Smith, and my condo to the Bronx Zoo.” Both Anna and the zoo are beneficiaries in the will. Life insurance policies and retirement plans typically have designated beneficiaries on file, as do some bank accounts. Make sure to confirm that there are no designated beneficiaries on the accounts you are trying to access before filing a probate petition.
Bequeath: if you are reviewing a will, you should come across a sentence that reads something like “I bequeath my real property to my niece, Katy.” Bequeath is just a fancy word used by NY estate planning lawyers to mean “give.”
Bequest: this is another fancy word used by NY estate planning lawyers to mean “a gift at death.” This not to be confused with a lifetime gift that the decedent gives during his or her life. A bequest vests in the beneficiary only at the time of the decedent’s death.
Bond: it is often the case that Surrogate’s Court will require a nominated executor or administrator to post a bond for a specific amount before they are officially appointment by the court. Such a bond acts as an insurance policy for the heirs of the estate against any loss the estate may incur from the acts of the personal representative of an estate (the administrator or executor). For example, if the executor flees the country with 300k belonging to beneficiaries of the estate, the bond company will cover that loss.
Executor: the executor is the most important person named in the will. Although a will names an executor, that nomination is not set in stone. In NY, if you are a convicted felon or live outside of the United States, you cannot serve as executor.
The executor is responsible for selling real estate, transferring bank accounts, paying creditors of the estate, closing accounts, paying any estate taxes due, defending against a will challenge, and all else that is necessary. An executor typically hires a NY estate lawyer to act on their behalf and guide them through the probate process.
Heir: when a decedent dies without leaving a will, his or her assets pass to their heirs according to the intestacy laws of NY. For example, Jason dies without a will. His parents have predeceased him, and his only brother died last year in a car accident. Who are Jason’s heirs? If Jason’s brother had any children who are still living, they would inherit his entire estate by their heir status. On the other hand, if Jason’s brother had no children, we would look to see if there are any aunts or uncles or first cousins, still living. If there no known heirs living, the estate passes to New York State.
Letters of Administration – a certificate provided by Surrogate’s Court showing that you have been officially appointed as administrator of the decedent’s estate. You will use this certificate to open an estate bank account, sell real property, and do all that is needed on behalf of the estate.
Letters Testamentary – a certificate provided by the probate department of Surrogate’s Court showing that you have been officially appointed as the executor of the decedent’s estate. You will use this certificate to open an estate bank account, sell real property, and do all that is needed on behalf of the estate. Your power to act as the personal representative of the estate derives from these letters.
Partition – in the event that the heirs, beneficiaries of a will, or the executor or administrator of the estate refuse to sell real property that is to be split amongst the parties, an action for a “partition” may be filed in which a Judge will issue an order directing the sale. It is highly recommended that you retain a NY estate lawyer for such a proceeding.
Preliminary Executor – if the nominated executor in the will expects a delay in being officially appointed as the personal representative, they can file an application asking the Surrogate’s Court to be appointed as the preliminary executor pending their probate petition. Some of the justifiable delays include an anticipated will contest or heirs that cannot be found.
Settlor: an individual who creates a trust, whether it be a revocable or irrevocable trust instrument. A settlor is also known as a grantor.
Successor trustee: an individual or entity that is named in the will to step in the shoes of the first choice executor if they can longer serve. A first choice executor may no longer be able to serve by way of death, incapacity, disqualification, or if their letters are revoked based on some act of impropriety.
Testator – an individual who creates and signs a will with the intention of disposing their property at death.
If you have questions regarding estate planning, probate administration, or general will questions in New York State, call us at (646) 233-0826 for information. Our office location is 85 Broad Street, New York, NY 10004.