When a parent passes away in Brooklyn, the family often finds the will tucked away in a safe deposit box or a desk drawer. There’s a sense of relief—a belief that these pages represent the final word. They see a named executor, a list of beneficiaries, and assume the path forward is a simple matter of following instructions. But that will is not the end of the story. It is the ticket to a mandatory, court-supervised process called probate.
The Surrogate’s Court Is Now in Charge
A will has no legal power on its own. It is a formal request to a New York Surrogate’s Court judge. The document nominates an executor and proposes a plan for distributing assets, but the court must first validate the will and officially appoint the executor. This is the heart of the probate process.
The nominated executor—often a child or close relative—must file a petition with the court, along with the original will and a death certificate. From there, legal notice must be given to all of the decedent’s “distributees”—the people who would inherit by law if there were no will. These individuals have the right to appear in court and object. This step alone can be a shock to families who assumed their loved one’s wishes were private and final.
Only after the court is satisfied that the will is valid and all interested parties have been notified will it issue “Letters Testamentary.” This court order is the document that gives the executor legal authority to act on behalf of the estate. Until that moment, bank accounts are frozen, property cannot be sold, and the estate is in a state of legal paralysis.
The Executor’s Fiduciary Duty
Serving as an executor is not an honorary title—it is a serious legal role with significant responsibilities. Once appointed by the court, the executor becomes a fiduciary. This means they have a legal duty to act in the best interests of the estate and its beneficiaries, placing those needs above their own. It’s a role that demands diligence, transparency, and impartiality.
The executor’s first job is to marshal the assets. This involves identifying and taking control of everything the decedent owned—real estate, bank accounts, investments, personal property. This can be a painstaking process of sifting through records and contacting financial institutions. Next, the executor must pay the decedent’s legitimate debts, from final medical bills and credit card balances to taxes. Only after all debts and administrative expenses are settled can the remaining assets be distributed to the beneficiaries as outlined in the will.
Throughout this period, which can last from nine months to well over a year, the executor must keep meticulous records and provide a formal accounting to the beneficiaries and the court. Any misstep, whether intentional or accidental, can expose the executor to personal liability.
When a Will Is Challenged
The probate process is designed to be orderly, but family dynamics can make it anything but. Because a will and all related court filings are public record, disputes can play out in an open forum. A beneficiary might feel they were treated unfairly. A disinherited relative might emerge with claims against the estate.
New York law provides a formal mechanism for these disputes. Under Surrogate’s Court Procedure Act (SCPA) §1410, an interested party can file objections to the probate of a will. Common grounds for a will contest include claims of improper execution, lack of testamentary capacity, or undue influence—that someone manipulated the person into creating the will.
A will contest can bring the entire probate process to a halt. It often involves extensive discovery, depositions, and potentially a trial. The estate’s assets are used to pay for the legal defense, diminishing the inheritance intended for the beneficiaries. This is often the most painful and costly part of probate—a public airing of family grievances that can permanently damage relationships.
Stewardship Beyond the Will
For many of the families I work with, the goal is to create a legacy that passes to the next generation with privacy, efficiency, and minimal potential for conflict. While a will is a foundational document, it cannot achieve these goals on its own because it guarantees a court process.
Assets held in a properly funded revocable or irrevocable trust, or those with designated beneficiaries like life insurance policies and retirement accounts, pass outside of probate. They are not subject to the Surrogate’s Court’s delays and public scrutiny. This isn’t about avoiding the law—it’s about being deliberate in how you structure your affairs to use the legal tools available for a more seamless transition. Planning for this outcome is the essence of true stewardship.
If you have been named as an executor in a will or anticipate serving in that role, a prudent first step is to have the document and the estate’s general landscape reviewed by counsel. My firm reserves time to assess these situations and provide a clear-eyed view of what the road through Surrogate’s Court will entail.
