5 Things You Need to Know About Surrogate’s Court

In New York State, Surrogate’s Court is a specialized court that decides what happens to the property of a deceased individual (the “decedent”). Surrogate’s Court helps families manage the transition of assets and responsibilities after someone passes away and resolves any disputes between parties.

In Surrogate’s Court, the judge is called the “Surrogate,” and the property of the decedent is called their “Estate.” Family members who are entitled to a share of the decedent’s property are “distributees.

There are three types of estate proceedings that you may file in New York State Surrogate’s Court. If you are handling the estate of a deceased family member, the type of estate proceeding you file will depend on your individual circumstances.

• Probate Proceedings are filed when the decedent left behind a will, which the court must be review and validate;
• Administration Proceedings are filed when the decedent did NOT prepare a will, and the Court must appoint an administrator to distribute the estate;
• Small Estate Proceedings, also known as voluntary administrations, are filed when the estate of the deceased is worth less than $50,000.

When a person dies with a will in New York State, the will needs to be filed in Surrogate’s Court and approved for probate. Probate is the process of proving the will is valid. Once the Surrogate is convinced the will is legally acceptable, the Executor named in the will is appointed to give out the decedent’s estate according to the will.

To start a probate proceeding, the person named as Executor in the will must submit the original will (without removing staples), a certified death certificate, and a form called a Petition for Probate, to the Surrogate’s Court in the county where the decedent lived. The probate petition must also list the decedent’s “distributees” (or heirs). All the distributees will either need to sign a waiver of citation or be served with notice of the decedent’s will and Executor’s filing to manage the estate.

If the Court determines that the will is legally acceptable, the Court will issue Letters Testamentary, which gives the Executor authority to distribute the estate. The Executor is responsible for gathering the decedent’s assets, paying any debts or taxes, and ultimately distributing the remaining assets to those named in the will.

When a person dies without a will, they’re said to have died ”intestate.” In that case, the decedent’s relatives must start an Administration Proceeding to legally collect and distribute the estate. Typically, the heirs (or “distributees”) closest to the deceased – such as a spouse and/or children – will inherit the estate.

To start an Administrative Proceeding, the closest distributee must file a copy of the paid funeral bill, a certified death certificate, and a form called a Petition for Letters of Administration to the Surrogate’s Court in the county where the decedent lived. The Petition must also list the decedent’s distributees as they must sign a waiver of citation or be served with notice informing them that a family member has filed to be appointed Administrator in order to manage the estate.

Once the court has issued the Letters of Administration, the Administrator is must manage the distribution of the estate. Like the “Executor” in Probate Proceedings, the person appointed as “Administrator” is responsible for gathering the decedent’s assets, paying any debts or taxes, and giving out remaining assets to the “distributees” in accordance with the law.

When a person dies with less than $50,000 of property, regardless of whether there was a will or not, their estate may be considered a Small Estate Proceeding or a Voluntary Administration. A Small Estate cannot have real property (like a house or land), but keep in mind that jointly owned property may not need to go through Surrogate’s Court.

To start a Small Estate Proceeding, you will need to submit a form called an Affidavit of Voluntary Administration. Please visit the NYCourts website for an online guide to generating the affidavit that you will need to file in your Surrogate’s Court case.

Call Legal Aid’s Access to Benefits hotline at 888-663- 6880 Monday through Friday from 10:00 am to 3:00 pm.

The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel.