My father died during COVID-19 without a will and left a house in Brooklyn, NY worth $700,000, do I need to go through probate to get the house now?
When any family member dies intestate, or without a will, you don’t go through probate to get properties or other belongings. Instead, you must go through an administrative proceeding. Administration is the process where the Surrogate’s court issues Letters of Administration to a qualified distributee of the Decedent, this usually being the heir or the closest person to the decedent. Letters of Administration allow the named distributee to collect and distribute the descendant’s property according to New York State Law.
Do I need to go through the administration process if the only asset left by the descendant is real estate?
If the only type of asset left by the decedent is real estate, you may not need to file an administration proceeding, but this depends on who survives the decedent. By law, real estate vests in the decedent's distributee, which makes them the new owner of the property. Since every situation is different, we recommend consulting with an estate attorney who can help make sure that all proper measures are taken.
How do I file for an administration proceeding?
In New York, there is a specific person who can usually be the only one to file an administration proceeding, and this is only when a family member dies intestate. For the most part, the person who is the heir to the decedent must file for administration. The distributee would file a copy of the paid funeral bill of the decedent, a certified death certificate along with the Petition for Letters of Administration, and other supporting documents that vary based on the county where the decedent's primary residence was located. The descendent’s distributee(s) must be listed in the Petition. The distributee(s) would then be served with a citation which allows the Surrogate Courts to determine the rights of the distributee(s). The purpose of the citation is to inform any and all distributees that someone is asking for the Letters of Administration to manage the estate of the decedent. The distributee(s) can then sign a waiver, which gives consent to the appointment of the Administrator, or come to court to disagree with the appointment.
When would it be necessary to go through the Probate process?
When someone passes away and leaves behind a will, a legal process known as Probate must take place to carry out the wishes in said will. That being the case, a will only needs to be probated in the state of New York if the decedent’s assets are valued at $30,000 or greater. Before the wishes in the will can be executed, it must be admitted to probate by the Surrogate’s Court in the county in which the decedent passes away. To go through the probate process, the will must be proven valid. In order for a will to be deemed valid it must have been properly executed and accurately reflect the wishes of the decedent. In the state of NY, a will must be signed in the presence of two witnesses also in the presence of each other. The creator of the will must have also not been under any undue influence from other parties when drafting the will.
How do you start the probate process?
The probate process begins with the filing of the original will and a probate petition with the court. The court then will issue a decree granting probate as well as Letters Testamentary to the Executor named in the will. Letters Testamentary is a document that gives the Executor of the will the authority to begin administering the estate. They will be in charge of identifying and keeping all relevant property documents as well as having the property appraised, paying off debts and taxes and distributing it according to the will.