Q: My cousin died and I was named as the Executor of her will. Do I have to probate her Last Will & Testament?
A: The answer is probably yes, but it depends upon the type of assets that your cousin owned at the time of her death and how those assets were titled.
Probate is the process by which a Last Will & Testament is accepted by the Surrogate’s Court. Just signing a Will is not enough, you must be appointed as the Executor by the Court once it is determined that the Will is valid. Probate is the process by which your next of kin are given notice and can exercise their right to object to the probate of the Will. There are various objections they can make, if warranted. They can claim that the will is not valid because the decedent did not have capacity, that the signing was not done in accordance with the laws of New York State, or whatever state they lived in at the time of signing, or the decedent was subject to undue influence.
Even in the simplest of circumstances, the probate process is necessary if assets are in your cousin’s sole name and no beneficiary is listed on the asset. If there is a joint owner on an account, it will belong to that joint owner. If a stock account has a transfer on death (TOD) beneficiary, that person or persons will inherit. This is the same on accounts that are payable on death (POD), in trust for (ITF), or, as for retirement assets, have a designated beneficiary. Absent one of these designations, probate is necessary.
The first step of the probate process is for the nominated executor to submit a probate petition with the original last will and testament and original death certificate to the Surrogates Court of the county where your cousin was domiciled (where they lived) at the time of death. As part of this, the next of kin need to be identified and given notice that the last will and testament is going through probate, even if those individuals are disinherited.
We all have next of kin, but do we know who they are? For a married individual that has children, both the spouse and children will be notified. Without a spouse or children, next of kin will be the parents, then siblings, children of siblings (i.e. nieces and nephews), and so on. These people who must be notified are also the ones that have the ability to bring legal objections to your will.
Hopefully when your cousin signed her Will she received advice regarding probate. All too often, the decedent did not understand the process that would commence upon their death. Proper planning requires a discussion detailing the steps that will be taken at death. Regardless, your role as Executor now is to follow the Court rules regarding probate of the Will, pay the bills and expenses of the estate, and distribute the assets according to her wishes.
By: Britt Burner
Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.