New York Estate Planning & Elder Law Blog
New York’s Surrogate’s Courts handle a wide variety of civil issues, mostly related to trusts and estates, guardianship, and adoption. The Surrogate’s Court is established in every county in New York, helping to provide residents with timely and effective due process for legal issues under the court’s jurisdiction. The following is a brief overview of the types of cases the Surrogate’s Court handle and what individuals can expect from the proceedings.
Probate – Probate proceedings deal with the process validating the last will and testament of a deceased person, if the individual created such a document. A last will and testament are the final directions given by the deceased to allocate his or her to estate to heirs and other beneficiaries.
It will be the responsibility of the person named as the executor of the estate to file the will with the probate office of the Surrogate’s Court, collect all the necessary documents, pay off creditors, and finally divide assets of the estate among beneficiaries per the wishes of the deceased.
Administration – If the deceased passed away without a last will and testament, the process of dividing assets among heirs can be more complicated. In these situations, the court will need to decide on an executor for the estate, who will then allocate assets based on New York’s intestacy laws.
Typically, the deceased’s surviving spouse will be granted the bulk of the estate, followed by surviving children, If the deceased leaves behind no spouse or children, then surviving family members such as parents, siblings, and grandchildren would become the beneficiaries.
Trusts – Individuals can create both living trusts (inter vivos) or testamentary trusts that take effect upon the testator’s passing. Living trusts will avoid probate since the assets are typically dispersed before passing away but testamentary trusts will still need to be filed with Surrogate’s Courts.
Often times, trusts are a much quicker and cost effective way of dispersing assets to loved ones and other beneficiaries. Whether you choose to create a last will and testament depends on what you may think will work best for your situation.
Guardianships – If a person cannot take care of himself or herself, it may be necessary to file a petition with the Surrogate’s Court to obtain a guardianship in order to make important decisions for the individual. While we never expect that ourselves or loved ones may not be able to act on their own behalf, unforeseen situations like medical conditions or a catastrophic accident may arise.
It will be necessary to have documentation from two doctors affirming the individual in question cannot take care of himself or herself. Generally, courts set very high standards for removing an individual’s ability to act on their own behalf so it will be necessary to be fully prepared when filing the petition with the Surrogate’s Court and appearing in front of a judge.