PLEASE READ CAREFULLY BEFORE ATTEMPTING ANY PROCEEDING
In New York State, the administration of a “DECEDENT’S
“ (deceased person) estate comes under the jurisdiction
of Surrogate’s Court. There are specific rules which must
be followed by any fiduciary who is appointed to administer
The term "FIDUCIARY" refers generally to an executor, administrator, trustee or guardian.. Where the decedent leaves a Will (“TESTATE”), the proceeding is called a “PROBATE PROCEEDING”. An "EXECUTOR" is the person named in a will to administer an estate. If the decedent leaves no Will (“INTESTATE”), the proceeding is called an “ADMINISTRATION PROCEEDING” and the court appoints an "ADMINISTRATOR" according to the RULES OF INTESTACY who performs duties similar to those of an executor.
A fiduciary may administer an estate as a layman without being represented by an attorney (“PRO SE”). This information is being provided to guide fiduciaries through probate proceedings. It covers only the basic mandates of the Court and may not explain the specific circumstances which arise in each estate. If you, as a fiduciary, are unsure of the legal or financial implications of any aspect of a probate proceeding, we urge you to consult an attorney.
In both probate proceedings and administration proceedings a fiduciary is responsible for the prompt, efficient and impartial administration of the decedent's estate. The fiduciary has important duties to perform. The assets of the decedent's estate must be collected and the debts and obligations of the decedent must be paid if there are sufficient funds in the estate. The estate assets must remain in New York State (i.e. estate checking account, etc.) The fiduciary must also comply with strict requirements for notifying persons who have a legal interest in the estate of any matters which may affect those interests. It is the responsibility of the executor or administrator to manage the estate carefully.
The decedent's estate includes any real or personal property which was owned by the decedent alone. "REAL" property refers to land or anything attached to it. "PERSONAL" property is any property other than real estate, such as bank accounts, stocks, insurance policies, etc. There are certain types of property ownership which provide for the transfer of title outside of the probate court jurisdiction. Property owned by a deceased person “JOINTLY” (with the right of survivorship) or as “TENANTS BY THE ENTIRETY” passes directly to the surviving owner and is not a probate asset. The fiduciary should consult an attorney if there is any doubt about including specific property in the estate.
The court has a series of forms to use for PROBATE proceedings and ADMINISTRATION proceedings.
RESPONSIBILITY FOR ACCURACY:
The petition must be signed by the fiduciary. The executor named in the will, or if there is no will, the decedent's spouse or next of kin takes control of and protects the decedent's property. No one may remove any property before the opening of the estate without an order from the court.
The petitioner should file the probate or administration petition as soon as possible.
An inventory listing all the decedent's personal and real property must be returned to the court within six (6) months of the fiduciary' s appointment on FORM 207.20, ASSETS AND INVENTORY. Each item listed in the inventory should be appraised by the fiduciary or a qualified appraiser at it's fair market value as of the date of the decedent's death and must be fully described.
IMPORTANT: The fiduciary is responsible for filing all necessary tax forms. These may include the decedent's final State and Federal income tax returns and possibly a fiduciary income tax return and an estate tax return. An estate may also be a taxpayer. If so, a fiduciary return must be filed reflecting all estate income and deductions. If you are in doubt as to the tax liability of the decedent or the estate, consult an attorney or an accountant.
MANAGING THE ESTATE:
It is the responsibility of the fiduciary to collect and manage the assets of the estate. This may include opening a checking account for the estate. Estate funds must be kept separately and may not be commingled with any other funds. It is imperative that the fiduciary keep exact and careful records. For example, it is necessary to account separately for income and principal.
CLOSING THE ESTATE:
FORM 207.42 must be prepared and executed by the fiduciary and the attorney and filed after 7 months or by the end of 2 years from the date of fiduciary appointment. RELEASES from all beneficiaries of the estate must be executed and filed at this time, if not already filed. It is a good idea not to make any distributions without obtaining a release at the same time. The releases discharge the fiduciary from his duty as such fiduciary. If other estate assets are discovered after the estate is closed, the fiduciary can submit an affidavit to the Court and obtain additional certificates.
A FINAL JUDICIAL SETTLEMENT OF ACCOUNTS may be required if there is a child under 18, or a person under a mental disability. It may also be necessary if there is a vesiduary charitable beneficiary or if the estate is insolvent.
Caution: We cannot answer all the questions which may arise while administering an estate. You should consult promptly with an attorney when in doubt as to the correct way to proceed. Seeking advice before you act may help to avoid costly errors.Surrogate's Court Home Page