If there is no will, an estate administrator (who can be a family member or even a creditor) is nominated through a petition. Those who inherit when there is no will (intestate takers) receive notice. These intestate takers are typically a spouse (if married), children (if any), and parents, siblings, or nieces and nephews depending on the circumstances. Significant others, unmarried “partners”, and even unmarried parents to one’s children, do not get notice.
As part of the Surrogate’s Court petition, you must prove you have served notice on all people entitled to receive it. The petition is filed in the county where the decedent resided, and a filing fee based on the size of the estate is also submitted. In New York State, the maximum filing fee is $1250, if the estate is worth $500,000 or more. The fee is based on “probate assets”, which are only those which are owned in the decedent’s name alone. An asset that names a beneficiary or is co-owned with a right of survivorship is not a probate asset. Most notably, trusts are not probate assets, thus they are said to “avoid probate.”
It generally takes up to two months for the Surrogate Court to issue letters. These empower the appointed person to act on behalf of the estate. The first step is obtain a tax I.D. for the estate (like a social security number for a person). Then the process of estate administration begins: paying bills, collecting estate assets, selling a home or business. So-called “preliminary letters” of appointment may enable a “nominated executor” to sell a home before actual letters are issued.
Assets that are owned in the decedent’s name alone must pass through probate to change the title. So, for example, if there is a deed in the name of one person, or the surviving spouse, probate is needed to sell the property. However, if property is jointly owned or names a beneficiary, that person inherits the property and estate administration is not needed. There is no way to name a successor owner for real estate apart from joint ownership on a deed or transferring the property to a trust.
Typically a bank or investment firm will release jointly owned assets or assets to a named beneficiary, upon a showing of a death certificate by the beneficiary. Sometimes they do ask for letters which appoint the executor or administrator, but the latter should not be necessary.
Our firm is often hired to file the petition and oversee estate administration.
