Estate Administration is the process by which a decedent's affairs are settled based on the decedent's pre-death planning or, when pre-death planning is absent or insufficient, according to New York law. The first step in Estate Administration is therefore to determine whether and to what extent the decedent made such preparations by gathering all necessary documents, including: Last Will and Testament, Trust Agreements, and financial documents. The estate attorney will then determine which type of Estate Administration is appropriate: Testate Administration or Probate, Intestate Administration, Small Estates Administration, Revocable Trust Administration, or a combination of these.
Testate Administration
Testate Administration is the administration of an estate of a person dying with a valid Last Will and Testament. Probate is the procedure in the Surrogate's Court by which a Will is proved to be valid or invalid, but the term may also refer to all matters pertaining to the administration of the estate.
A Will is without effect until it is validated as a Will in a Probate Proceeding in the Surrogate's Court. The person nominated in a Will as the Executor has no power or authority to act until appointed by the Surrogate.
The Probate Proceeding is begun by filing the original Will and a Petition with the Surrogate's Court in the county in which the decedent resided. The petition is filed by the person nominated as Executor in the Will and informs the court of the facts regarding the decedent, the nominated Executor, the decedent's family, and the terms of the Will. Once the court determines the Will to be valid, the court will issue Letters Testamentary to the Executor. Letters Testamentary is a document which gives the Executor authority to act on behalf of the estate. The Executor must collect assets, pay debts and expenses, prepare and file estate and income tax returns, account to the estate beneficiaries, distribute assets to the beneficiaries, and file an inventory with the court.
Only assets held in the name of the decedent alone are subject to the terms of the Will. Assets held in some form of joint ownership or payable to a designated beneficiary are not subject to the Will and pass by operation of law. In cases where a decedent's pre-death planning has placed all assets outside of the Will, there is no need to begin a probate proceeding the Surrogate's Court.
Intestate Administration
Intestate Administration is the administration of the estate of a person dying without a valid Last Will and Testament. The Administration Proceeding is begun by filing a Petition similar in content to the probate petition with the Surrogate's Court in the county in which the decedent resided. The petition is filed by a person, usually a close family member, authorized to act as Administrator under New York law. Upon determining that all necessary parties and issues have been properly addressed by the petition, the court will issue Letters of Administration to the Administrator. Letters of Administration is a document which gives the Administrator authority to act on behalf of the estate. The Administrator must collect assets, pay debts and expenses, prepare and file estate and income tax returns, account to the estate beneficiaries, distribute assets to the beneficiaries, and file an inventory with the court.
Only assets held in the name of the decedent alone are subject to Intestate Administration. Assets held in some form of joint ownership or payable to a designated beneficiary are not subject to Intestate Administration and pass by operation of law. In cases where there are no assets in the decedent's name alone, there is no need to begin an administration proceeding the Surrogate's Court.
Small Estates Administration
Small Estates Administration is the administration of the estate of a person dying with assets in his or her name alone, the aggregate value of which is $30,000 or less. A Small Estate Administration is begun by filing an Affidavit requesting the appointment of a Voluntary Administrator with the Surrogate's Court in the county in which the decedent resided. The petition is submitted, in the case of a person dying with a valid Will, by the nominated Executor; in the case of a person dying without a valid Will, generally by a close family member in accordance with New York law. The court will authorize the Voluntary Administrator to collect specific assets and administer those assets in accordance with the Will or New York law. The Voluntary Administrator must also file a report with the Surrogate's Court showing the collection and disposition of the assets.
Revocable Trust Administration
Revocable Trust Administration is the administration of the estate of person dying having transferred all assets into a valid Revocable Trust. A Revocable Trust is established by a Trust Agreement in which the Grantor, the person setting up the trust, names a Trustee to administer the trust upon the Grantor's death. The Trustee of the post-death revocable trust has many of the same duties and responsibilities of an Executor or Administrator. The Trustee must evaluate the assets of the trust, pay debts and expenses, prepare and file estate and income tax returns, account to the trust beneficiaries, and distribute assets to the beneficiaries.
Mixed Estate Administration
In some cases, it may be necessary to use a combination of procedures to completely administer a decedent's estate. For example, a decedent dies with a Revocable Trust, valid Last Will and Testament, and a $100,000 bank account in his or her name alone. It will be necessary to combine the Revocable Trust Administration with Probate. In the case of a $10,000 bank account, the combination will be Revocable Trust Administration with Small Estates Administration. In the case of decedent dying intestate, the combination will be Revocable Trust Administration and Intestate Administration or Small Estates Administration.