A family in Brooklyn receives a formal document from the Surrogate’s Court called a “Citation.” It names a recently deceased relative and instructs them to appear or otherwise respond by a certain date. This is often the first time a family learns what it means for a will to be “probated”—it’s the beginning of a public, court-supervised process that will define the stewardship of their loved one’s assets for the next several months, or even years.
The word “probate” sounds technical, but its meaning is simple. It comes from the Latin probare, which means “to prove.” When a will is probated, it is formally submitted to the court to be proven as the valid, final testament of the person who has passed away. It is the official starting pistol for settling an estate.
The Court’s Role: Validation and Oversight
In New York, the Surrogate’s Court oversees all probate matters. Its primary function is not to reinterpret a will, but to ensure it is authentic and that its instructions are carried out correctly. The person named as the Executor in the will files a petition, along with the original will, asking the court to officially recognize their authority. The court then examines the will to confirm it meets all legal requirements—was it signed correctly? Were there two witnesses? Does it appear to be the final version?
Once the court is satisfied, it issues “Letters Testamentary.” This is the legal document that gives the Executor the power to act on behalf of the estate. Without it, an Executor has no authority to access bank accounts, sell property, or manage investments. The court’s grant of authority transforms a person named in a document into a fiduciary with legal duties to the estate and its beneficiaries.
From Executor to Fiduciary: The Probate Process
With Letters Testamentary in hand, the Executor’s work begins. It is not simply a matter of reading the will and writing checks. The Executor has a fiduciary duty to manage the estate’s affairs with prudence and loyalty. The court supervises three distinct phases of this work:
- Marshalling the Assets: The Executor must identify, locate, and take control of all assets that are subject to probate. This includes everything from real estate and bank accounts to personal property and investments. An official inventory is filed with the court, creating a public record of the decedent’s estate.
- Satisfying Debts and Taxes: An estate cannot be distributed until all legitimate debts are paid. The Executor is responsible for notifying known creditors and publishing a notice for any unknown creditors. They must also file the decedent’s final income taxes and any required estate tax returns.
- Distributing to Beneficiaries: Only after all assets are collected and all debts and taxes are paid can the Executor distribute the remaining property to the beneficiaries as instructed in the will. The Executor prepares a final accounting for the court and the beneficiaries, showing every dollar that came in and every dollar that went out.
The framework for this process is laid out in New York’s Surrogate’s Court Procedure Act (SCPA). SCPA Article 14, for instance, governs the proceeding to admit a will to probate. These are deliberate, and sometimes slow, rules designed to prevent fraud and give all interested parties a chance to be heard.
The Alternative to Probate
Probate only applies to assets owned solely in the decedent’s name. Many assets can and do pass outside of this court process—a core element of intentional estate planning.
Assets held in a properly funded Revocable or Irrevocable Trust, for instance, are not subject to probate. The successor trustee named in the trust document can manage and distribute those assets privately, without court intervention. Likewise, assets with a designated beneficiary—such as life insurance policies, 401(k)s, and IRAs—are paid directly to the named person. Bank accounts held jointly or designated as “Transfer on Death” (TOD) also bypass the probate process.
For many of the families and executives I represent, the privacy, efficiency, and control afforded by non-probate transfers are primary goals. Structuring an estate plan to avoid probate isn’t about avoiding the law; it’s about using the law to create a more direct and private path for your legacy.
If you are named as an Executor or have received a citation from Surrogate’s Court, your first step is to understand the document and your legal duties. We can schedule a consultation to review the will and any court filings you have received, which allows us to outline the responsibilities ahead.
