Estate Administration Frequently Asked Questions

What is estate administration?

Estate administration is the process that follows the death of a loved one in which the decedent’s estate is distributed, creditors are paid, and all other debts and taxes are satisfied.

What is probate?

Probate is the legal process by which a court ensures that the will of a person who passed away is valid.    Specifically, the court makes a determination that the will was properly executed and that the person who made the will was legally competent and not under any undue influence at the time he/she made the will.

What assets are governed by the terms of the will?

Only the decedent’s individually owned assets that did not have a surviving joint owner or surviving designated beneficiary are governed by the terms of the will.   For example, if the decedent owned a bank account in his own individual name with no joint owner or designated beneficiary, the collection and distribution of this account would be governed by the terms of the will. The court supervises the administration of all assets that are governed by the terms of the will to ensure the terms of the will are properly carried out.  These assets are thus often referred to as the decedent’s “probate assets”.

The decedent’s assets that did have a surviving joint owner or designated beneficiary, on the other hand, are not governed by the terms of the will.  For example, if the decedent owned an asset that had a surviving joint owner, such as a house owned jointly by a husband and wife, the surviving joint owner will automatically become the owner of the asset regardless of the terms of the will.  Since these assets can be collected directly by the appropriate joint owner or designated beneficiary, the court does not directly supervise the administration of these assets.  These assets are thus often referred to as the decedent’s “non-probate assets”.

Who receives a decedent's probate estate assets if there is no will?

If a decedent dies without a will, New York State statutory law provides who will receive any net estate assets remaining after the payment of debts and expenses. For example, if a decedent is survived by a spouse and children, the estate will be divided among the decedent’s spouse and children. In cases where an individual was not married and had no surviving children, the entire estate will be given to the individual’s parents if they are surviving, and if not, to the individual’s siblings (and the surviving children of any predeceased siblings).

Who administers an estate?

The court will formally appoint an individual to administer the estate.  If the decedent left a will, the court will give first priority to the person designated as executor in the will.  If the decedent did not leave a will, New York State law determines who has first priority to serve in this role.  When there is no will, the person who administers the estate is referred to as the “administrator.”   The executor / administrator does not have the legal authority to administer any assets until he/she is officially appointed to that position by the court.  The executor / administrator is often referred to as the “personal representative”.

What are the duties of the personal representative?

The personal representative must collect and safeguard the assets of the estate, manage and/or liquidate assets of the estate as appropriate, and pay all valid debts and administration expenses of the estate.   The personal representative must also attend to the filing of the decedent’s final personal income tax return, as well as any needed fiduciary income tax and/or estate tax returns. After all the assets have been collected, all debts and expenses have been paid, and all tax returns have been filed, the personal representative must then distribute the remaining assets to the beneficiaries of the estate (in accordance with either the terms of the will, or in accordance with New York State inheritance laws if there was no will).

How long does the estate administration process take?

The length of the process depends on a number of factors.  An estate administration can be straightforward or very complex.  New York State law gives creditors 7 months to makes claims against the estate, and therefore this is the shortest amount of time the process can take.  Commonly the process can take anywhere from 9 months to two years.  However, each administration is different and the process can sometimes become complicated.

Does the personal representative need an attorney?

The rules governing the administration of an estate can be complex.  The personal representative also can be held personally liable if the estate is not properly administered.  It is thus strongly recommended that the personal representative retain an attorney to assist with the estate administration process.

A loved one just died - what do I do?

First and foremost, take care of yourself and your family.  Look for any written instructions from your loved one or discuss with family members any preferences your loved one had regarding funeral and burial arrangements.  Oftentimes, funeral homes can help with many of the arrangements.

After funeral and burial arrangements are made and family members and friends have been notified, it is important to gather essential financial and legal information (such as death certificates, the original will, recent tax returns and current financial statements), and then contact a knowledgeable attorney for assistance on how to proceed.