Estate Law & Practice – Common Terms

– some frequently used terms with regards to an Estate Lawyer

Surrogate’s Court

  • The Surrogate’s Court of the decedent’s domicile at date of death has jurisdiction over the estate of the decedent and is the proper venue for proceedings related to the estate.
  • The Suffolk County Surrogate is Honorable John M. Czygier, Jr., and the courthouse is located in Riverhead.

Testacy and Intestacy

  • Testacy is when a person dies leaving a will.
  • Intestacy is when a person dies without a will.

Probate and Administration

A Probate proceeding is initiated for a decedents who died testate, that is with a valid will.  Typically, the named executor of the will files a petition for probate.  A probate proceeding initially determines the validity of the will.  If the petition is granted and the will is admitted to probate, the Surrogate issues “Letters Testamentary” which empowers the Executor to act.

Those individuals who receive property of the decedent pursuant to a will are referred to as “beneficiaries”.

An Administration proceeding is initiated for decedents who died intestate, without a will.
The petition for administration is filed by a person who, pursuant to statute, is qualified and eligible to file.  If the petition is granted by the Surrogate, Letters of Administration are issued to the petitioner, which authorizes the Administrator to act.
Those individuals who receive property pursuant to the statutory laws of descent and distribution are referred to as “distributees”.

Small estates valued at less than $30,000.00 do not require letters of administration, and are administered when a distributee petitions for voluntary letters in a somewhat simplified proceeding, pursuant to statute.

Descent and Distribution  

In either a Probate or Administration proceeding, it is necessary to know who the decedent’s distributees are under the New York laws of descent and distribution.  For persons with a date of death after September 1, 1992, EPTL 4-1.1 controls as follows:

  • If survived by spouse and issue (children, grandchildren, great-grandchildren) then the spouse takes the first $50,000.00 and ½ of the balance. The issue share the balance by “representation”.
  • If survived by spouse and no issue, the entire estate goes to the spouse.
  • If survived by issue and no spouse, then to the issue by representation.
  • If survived by no spouse and no issue, then to the parents of the decedent.
  • If survived by no spouse, no issue and no parents, then to the issue of the decedent’s parent’s by representation (decedent’s brothers, sisters, nieces, nephews, grandnieces, grandnephews).
  • If survived by no distributees in the above categories, but surviving grandparents or grandparents’ issue, then as follows:
  • ½ to surviving paternal grandparent or grandparents or if neither surviving, then to their issue, by representation (aunts, uncles, first cousins)
  • ½ to the surviving maternal grandparent or grandparents, or if neither surviving, then to their issue by representation (aunts, uncles, first cousins)

If you have any questions or would like a free consultation, please call our Riverhead Law Office at 631-727-3904.