Probating a will refers to the act of submitting a will to the Surrogate Court for approval. Probating a will is not a simple matter and is almost always accomplished by retaining the services of an experienced estate attorney.
The person with a will is known as the testator. All of the person’s property, both real estate and personal property, is known as the estate of the testator. In the will, the testator name san executor to administer the estate after the testator’s death. The executor can be an individual, a bank, a trust company or an attorney. If the person named as the executor is woman, she is known as the executrix. The executor or executrix has many responsibilities and may get paid a fee for his or her service,although the fee is often waived if the executor is a close family member.
It is the responsibility of the executor or executrix to follow the wishes of the testator as stated in the will and to administer the assets of the estate accordingly. The executor must identify and locate all of the testator’s assets and debts. The executor must make certain that all taxes owed by the testator’s estate are paid. If debts and taxes are not paid properly, the executor may be personally liable for these debts. For example, if the executor distributes the estate to beneficiaries without first making certain that valid debts and taxes are paid, the executor may become personally liable for those debts and taxes.
The first task for the executor is to locate the original will. If the original will is lost it may be impossible to probate the will. At the very least, it would be much more difficult to probate anything other than the original will.
The next task for the executor is to file the will with the Surrogate Court along with a completed lengthy petition. In addition, the executor must file a certified copy of the death certificate and pay a filing fee.
All beneficiaries under the will must be notified that the will is being probated. In addition, notice must be given to all of the decedent’s distributees. This means that anyone who would be entitled to receive a portion of the estate if there were no will must be given notice of the probate of the will. In this way, those potential distributees will have the opportunity to challenge the will. To challenge the will successfully, the challenger must prove that the testator was either not competent or was under unfurl influence when making the will.
If there are no challenges or if the challenges are unsuccessful, the will will be admitted to probate, which means that it will be approved by the Court. Once the will is approved, the executor may pay all of the debts of the estate, file tax returns and pay all taxes owed. The executor then distributes the assets of the estate to the beneficiaries.
Once the assets are distributed, the executor’s final task is to prepare an accounting to the Court. The final accounting must list the assets collected, the debts paid, and the distributions made. Unless the account is challenged, the Surrogate Court will approve it and will then discharge the executor from all duties. The estate will then be closed.
Call us at (718) 625-0800 to schedule a free consultation.