When a parent dies in Brooklyn with a will, their estate does not pass to the children overnight. First, it must pass through the Kings County Surrogate’s Court. This is the probate proceeding—the formal, court-supervised process of validating a will and empowering an executor to act. Many families are surprised to learn that a will, by itself, grants no authority. It is merely a set of instructions for a judge. Only the court can give that will the force of law.
I’ve sat with countless families grappling with a loss while also facing the sudden, unfamiliar responsibilities of estate administration. They believe the will is the final word, but it is actually the first document in a long conversation with the court. Understanding this process is the first step in acting as a prudent steward for a loved one’s legacy.
The Executor’s Fiduciary Duty
Being named an executor is often seen as an honor. In the eyes of the law, it is a job—a fiduciary position with significant legal responsibilities and personal liability. The moment the Surrogate’s Court issues “Letters Testamentary,” the document that officially appoints you, you are bound by a fiduciary duty to act in the best interests of the estate and its beneficiaries. This is not a role to be taken lightly.
Your first duties involve marshaling the decedent’s assets—locating, securing, and inventorying everything from bank accounts and real estate to personal property and investments. This requires meticulous record-keeping. You must then notify all interested parties, including beneficiaries, next of kin, and creditors. This formal notice gives them an opportunity to review the will and, if they choose, to object.
Next comes the less glamorous but critical work: paying the decedent’s final debts, taxes, and administrative expenses. Only after all legitimate claims against the estate are settled can you distribute assets to the beneficiaries according to the will’s instructions. Acting out of order or distributing funds prematurely can expose an executor to personal financial risk if a valid debt later surfaces. Stewardship demands patience.
The Surrogate’s Court and a Valid Will
The probate proceeding is a court case. The executor, through their attorney, petitions the court to have the will admitted to probate. The court’s role is to determine if the will is authentic and legally valid under New York’s strict rules.
The court examines the will to ensure it meets the requirements of “due execution.” Was it signed by the testator? Was it witnessed by at least two people who signed within a 30-day period? Did the testator declare to the witnesses that the document they were signing was, in fact, their will? These formalities are not trivial—they are safeguards designed to prevent fraud and undue influence.
Under Surrogate’s Court Procedure Act (SCPA) § 1408, the court must be satisfied with the genuineness of the will and the validity of its execution. If no family members object and the will appears properly drafted and signed, the process can be straightforward. However, if a disgruntled heir files a challenge—claiming the decedent was not of sound mind or was pressured into signing—the proceeding can become a protracted and costly legal battle known as a will contest.
When There Is No Will
If a person dies without a will, the process is called an “administration” proceeding, not probate. The court still supervises, but instead of an executor, it appoints an administrator. The decedent’s assets are then distributed according to a rigid formula set by state law, known as the laws of intestacy. This means the law—not your loved one—decides who gets what. This is rarely the outcome anyone would have chosen, which underscores the importance of a deliberately drafted will.
Assets That Bypass Probate
An important part of our work is helping clients structure their affairs to minimize the reach of the Surrogate’s Court. Not all assets are subject to probate. Any asset with a named beneficiary or that is owned jointly with rights of survivorship passes directly to that person outside of the will’s control.
This typically includes:
- Life insurance policies
- Retirement accounts like 401(k)s and IRAs
- Bank accounts designated as “Payable on Death” (POD) or “In Trust For” (ITF)
- Real estate owned jointly with a spouse or another person
Most significantly, assets held in a properly funded revocable or irrevocable trust do not go through probate. The trust document controls their distribution, and the successor trustee you named is empowered to manage and distribute them without court intervention. This is a private, efficient, and intentional way to transfer generational wealth, avoiding the delays and public record of a probate proceeding.
Probate is the default process for assets governed by a will. It is a necessary and structured system, but it is not always the most effective path. Effective estate plans are built with a clear understanding of what probate is—and how to plan around it when appropriate.
If you have been named as an executor in a will or are facing the administration of a loved one’s estate, the first step is to understand your legal obligations. To help you prepare for this role, we can schedule a consultation to review the will and outline the initial petition to the Surrogate’s Court.
