Probate, trust, guardianship and inheritance litigation
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Who Can Petition For Probate In New York?

The persons allowed to petition for probate in New York differ between a testate (decedent had a will) and intestate (decedent did not have a valid will) estate.

Who Can Petition for Probate Of A Will In New York?

New York’s Surrogate’s Court Procedure Act (SCPA)  section 1402 states that a petition for probate of a will in New York may be presented by:

  • Person named in the will as legatee, devisee, fiduciary or guardian
  • Guardian of an infant legatee or devisee
  • Conservator of a legatee or devisee
  • Creditor of the estate
  • Public Administrator or the County Treasurer on order of the court, where a will has been filed in the court and proceedings for its probate have not been instituted or diligently prosecuted.

The Nominated Executor Is Usually The Person Who Offers The Will For Probate

In practice, the person nominated to serve as the executor under the will is the person who offers the will for probate.

If there is more than one executor nominated in the will, they can petition the court together.  If just one of them petitions, then oaths and designations can be submitted by the other(s).

Who Can Petition for Probate Of An Intestate Estate?

New York SCPA section 1002 enumerates those persons entitled to petition for probate appointment of an administrator in an intestate estate:

  • Interested persons in the estate
  • An assignee of a person interested in the estate
  • A person consented to be all distributees
  • Public administrator
  • Chief Fiscal officer of the county
  • Creditors
  • Person involved in an action in which the decedent is a party

Who Is a “Person Interested” In a New York Estate?

New York SCPA section 103(39) defines a “person interested” as:

Any person entitled or allegedly entitled to share as beneficiary in the estate or the trustee in bankruptcy or receiver of such person.  A creditor shall not be deemed a person interested.  Where this act provides that a “person interested” may apply for relief, a verified allegation of an interest in fact, suffices for the purpose of the application, although the interest may be disputed, unless or until the fact of interest has been judicially determined and no appeal is pending therefrom.

Who is Entitled to Serve As Administrator of An Intestate Estate?

For a petition for probate filed in a New York intestate estate, pursuant to New York SCPA section 1001, letters of administration must be granted in the following order to those persons who are eligible and qualify:

(a) the surviving spouse,

(b) the children,

(c) the grandchildren,

(d) the father or mother,

(e) the brothers or sisters,

(f) any other persons who are distributees and who are eligible and qualify, preference being given to the person entitled to the largest share in the estate, except as hereinafter provided:

(i) Where there are eligible distributees equally entitled to administer the court may grant letters of administration to one or more of such persons.

(ii) If the distributees are issue of grandparents, other than aunts or uncles, on only one side, then letters of administration shall issue to the public administrator or chief financial officer of the county.


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