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Probate
 
When a person dies with a will, the will must be filed with the Surrogate’s Court and admitted for probate. When a person dies without a will, then an administration proceeding should be filed. When a decedent passes away with less than $30,000 of personal property, than a small estate, also known as a voluntary administration proceeding can be filed, regardless of whether there was a will or not.
 
Probate is the process of determining that a will is in fact valid. The purpose of probate is to prove the validity of the will, to have an executor appointed and administer the estate. A will cannot be probated unless the Surrogate’s Court is satisfied that the will is genuine and was validly executed. A will is not operative until it is admitted to probate by the Surrogate’s Court. Admission to probate requires establishing, with due notice to all required persons, that: (1) the will is the will of the decedent; (2) that it has been signed and witnessed and otherwise executed as required by law; (3) that at the time of its execution the decedent was of sound mind; and (4) that it, indeed, was the last will and testament of the decedent. When the decedent executes a will, the new will serves to revoke any and all earlier wills.
 
When the Surrogate’s Court is satisfied that the above conditions have been established, the will is then admitted to probate and the Executor named in the Will is appointed to distribute the estate and carry out the wishes of the person who died. The Surrogate's Court oversees this process. Until the will is admitted to probate, the will has no force and effect, and the named executor will have no authority to act. Probate proceedings can be very complicated. In most cases it is best to consult with an attorney.
 
Objections to Probate

Once the will is placed with the Surrogate’s Court, the court will issue citations to anyone who has standing to challenge the will, usually all beneficiaries and heirs. Heirs are anyone closely related to the deceased who would have inherited by law if he had died without a will. They may or may not also be beneficiaries in the will. The citation sets a date for a hearing, generally within 10 days. If you want to object to the will’s entry into probate, you must appear in court on that date or you will forfeit your chance to contest.

Spouses' Rights

Spouses have an automatic right, called a “right of election,” to a percentage of the deceased’s estate in New York. Legislation enacted as of September 1, 1992 gives surviving spouses two years from the date of death to file this election with the Surrogate’s Court. If you attempt to disinherit your spouse or leave him or her less than a statutory share in your will, New York will give it to her anyway. The share is $50,000 or one-third of your estate after payment of taxes, debts and expenses, whichever is greater.