Frequently Asked Questions

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What happens if the Executor named in the will has died or is otherwise unable to act?

A substitute Executor is usually named in a will.  If a second choice was not named, someone, usually a beneficiary, can petition (i.e., ask) the Surrogate’s Court to be appointed as the personal representative of the estate.  In this situation, he or she will not be called an Executor, but rather an “administrator c.t.a.”.

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Is the Executor paid for his or her work?

Yes, the Executor is entitled to be paid a fee, called a “commission” for his or her work. The rate of payment is fixed by a New York State law called the Surrogate Court Procedures Act, Section 2307.  It is based on the value of the estate, roughly as follows:

5% of the first $100,000
4% of the next $200,000
3% of the next $700,000
2 ½% of the next $4,000,000
2% above $5,000,000

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What happens if the original will is lost?

A copy of a will can be “proven” (i.e., declared valid) in some circumstances.  In general, New York State law provides that if the original will was last known to be in the possession of the testator (the deceased), then there is a presumption that the will was revoked.  If, however, it was last known to be in the possession of another, such as the attorney who drafted the will, then the copy may be declared valid.

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What happens if I die without a will?

If you die without a will or your will is declared invalid, and you are a New York State resident, the laws of New York will take over and direct how your property is to be distributed.  The New York State Estates, Powers & Trusts Law sets a default distribution for those who did not have a will.  The problem with dying “intestate” (i.e., without a will) is that the law will probably not distribute your estate as you would have liked.

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How long does probate take?

This depends upon many factors.  An estate administration can be straightforward or very complex.  One factor that comes into play is the fact that New York State law gives creditors (people the deceased owed money to) 7 months from the time the Executor is appointed to file any claims against the estate.  Accordingly, it is wise to wait until the 7 month window has passed before distributing assets of the estate.  If the Executor distributes earlier and a valid claim is presented after distribution, the Executor is personally responsible for the debt.

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What if new assets are discovered after the estate has been closed?

The Executor must reopen the estate and account for the new assets.

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Who has the right to see the will?

A will that has been submitted for probate is a public document and anyone can go to the Court and obtain a copy.  If you cannot go to the Court yourself, you can hire a lawyer to obtain a copy for you.

If the testator (i.e. the person who made the will) is alive, the testator does not have to share the contents of the will with anyone.  That includes their spouse.

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What if the testator is deceased and you believe that someone is hiding a will or has destroyed it.

Under the Surrogates Court Procedures Act, a person with an interest in the estate may summon and examine the person believed to be hiding the will. The Court can order that person to produce the will.

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My mother told me that her diamond necklace would be mine when she died. I discovered that my sister took it before my mother died. Can I get it back?

If it can be shown that your sister took the necklace without your mother’s consent, a proceeding can be started to claim it.

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My mother told everyone in our family that she wanted to change something in her will, but she died before actually making the change. Does this have any effect?

No. Nothing amends or changes the provisions in a will except a later dated will or codicil (change to a will).

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My husband left me many years ago. Can I have him declared “dead” and claim his insurance?

New York law states that a person must be absent for at least five years before the beneficiary is entitled to claim a death benefit.  In addition, a special proceeding must be started in the Surrogate’s Court to declare a person legally dead.

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What if the wording of a will is unclear? (e.g., a provision that states $10,000 will be left to “William”)

The Surrogate’s Court will hear arguments and issue a decision on the question of what the testator intended.

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