ESTATE ADMINISTRATION IN NEW YORK: THE BASICS
Whether a decedent has died with a will or without a will, administration proceedings are basically similar. The proceeding will take place in the Surrogate’s Court of the county in which the decedent was domiciled when he or she died. The proceeding begins with the application (the petition) to the court to appoint an estate representative - in the case of a will, the estate representative will be an executor (the person named in the will to be the executor) and, in the case of someone dying without a will, the estate representative will be an administrator. Note that you may have two or more persons serving as co-estate representatives, either as co-executors or as co-administrators.

To “probate a will” means to obtain an order of the Surrogate’s Court recognizing the will document as the last will and testament of the decedent, and to then carry out the terms of the will.

In the case of a straightforward estate with no out of the ordinary problems or issues, the documents filed in order to be appointed the estate representative include the following:

In the case of a will
  1. Probate petition.
  2. Original will, along with original will witness affidavits.
  3. Waivers/consents/renunciations in favor of the appointment of the petitioner to be the estate representative, from those persons having an equal or prior right to be appointed the estate representative.
  4. Proof of mailing of a notice of probate to those persons named in the will who do not have equal or prior rights to be the estate representative.
  5. Original death certificate.
In the case of a person dying without a will
  1. Petition for the petitioner to be appointed the administrator.
  2. Original death certificate.
  3. Waivers/consents/renunciations of those persons having an equal or prior right to be appointed the administrator.
  4. In some cases, proof of payment of the funeral bill or a waiver/consent from the funeral director.

A person when appointed executor will receive letters testamentary and a person when appointed administrator will receive letters of administration. In some cases, the letters may be limited or restricted. For example, when the estate has a right of action for personal injury to or wrongful death of the decedent, typically there would be a limitation in the letters of administration and sometimes even in the letters testamentary to the effect that the wrongful death claim may not be settled without approval of the Surrogate’s Court.

For an estate without unusual issues or litigation or unusual facts and circumstances, your duties as the estate representative generally will include the following:
  1. Identify and place under your control or otherwise collect all assets, including real property, personal property, tangible and intangible assets, as well as benefits, such as retirement benefits and life insurance proceeds, that are payable to the estate.
  2. Identify all claims, debts and other obligations and liabilities, and address them, initially either by paying or agreeing to pay, or by denying them.
  3. Pay the funeral bill or reimburse the person who has already paid the funeral bill.
  4. Prepare and file the decedent’s personal income tax returns and, if necessary, make estimated income tax payments.
  5. Value the various assets, usually as of the date of death. To do so, informal or formal appraisals may be necessary.
  6. If necessary, prepare and file estate tax returns and make estimated payments of estate taxes, if any, to avoid accrual of interest and penalties.
  7. Prepare fiduciary income tax returns and make estimated payments, again to avoid the accrual of interest and penalties. (The estate is an income tax payer and the income taxes paid are called fiduciary income taxes.)
  8. Identify credit cards, leases and other ongoing obligations and address them.
  9. Maintain insurance on estate assets, especially insurance on real property.
  10. Prepare and file reports to the court. One is an inventory report, identifying the assets and their respective values. The second report is a type of closing report, to advise the court that the estate has been fully distributed or, if not yet fully distributed, why.
  11. Prepare an accounting for the beneficiaries. The accounting may be informal or may be the subject of a formal proceeding in the Surrogate’s Court.
  12. Make distribution to the various beneficiaries and obtain receipts and releases from the beneficiaries. The receipts and releases will be filed with the Surrogate’s Court.
  13. In connection with distribution, it may be necessary reserve an amount to pay contingent liabilities or known liabilities that have not yet been paid or settled.

An estate representative is ordinarily paid a commission for his or her services. The payment is based upon the value of the assets that the estate representative is charged with administering. Such assets generally are those assets that are payable to the estate or that were just in the decedent’s name, but generally would not include property owned jointly with another person who survives the decedent and generally also not include a specific bequest of personal property or a specific devise of real property.  An example of a specific bequest of personal property would be, "I give my 2008 Harley-Davidson motorcycle to my son Peter," and an example of a specific devise of real property would be, "I give my residence at 112 Smith Road to my daughter, Katherine." 

Note that commissions may be substantial:  the commissions are 5% of the first $100,000.00 of asset value, 4% of the next $200,000.00, 3% of the next $700,000.00, and so on.

A matter worthy of special note is that creditors and claimants against an estate have seven months in which to file claims against the estate. The seven month period runs from the date of the appointment of the estate representative and claims are “filed” by serving the claim on the estate representative - they are not ordinarily filed in the Surrogate’s Court, although it is not uncommon to do so. In most cases, it would be prudent for the estate representative to wait at least seven months before making substantial distribution from the estate to the beneficiaries - if the estate representative does distribute too quickly and then, toward the end of the seven month period, a claim is filed, and there are insufficient assets remaining, the estate representative may be personally liable to pay the claim. This seven month wait is one reason why the administration of an estate may typically take close to a year to complete.