Frequently
Asked Questions
What
happens if my loved one dies without a will?
He/she died intestate. If the value of the estate is under $20,000.00,
you must file a small estate proceeding. If it is over $20,000.00,
you must file an administration proceeding.
Who may file an estate proceeding?
If there is a Will, the person named as Executor or Executrix
or if they are deceased or unable to act, the person named as
Successor Executor/Executrix. If there is no Will, a person
who qualifies under the laws of intestacy.
My spouse died in the hospital and they will not give
me copies of the medical records. What do I do?
Check with the Surrogate's Court in the county in which the
person resided. Some counties will allow you to file a small
estate proceeding, other counties require you to file a full
administration or probate proceeding.
My mother died in a nursing home. It has contacted me
and said I must file a proceeding in Surrogate's Court to obtain
the money in her personal account. What proceeding do I do?
If that is the only asset or the value of the total assets are
under $20,000.00, you may do a small estate proceeding. If over
$20,000.00, you must file a full administration or probate proceeding
My father moved to a nursing home last year after selling
his house and died there. Is the nursing home considered his
domicile for Surrogate's Court purposes?
No. Pursuant to SCPA §103, a domicile is a fixed, permanent,
and principal home to which a person, wherever temporarily located,
always intends to return. Nursing homes are usually the place
that someone only enters if he/she is incapacitated or incompetent,
and he/she would always prefer to return home. Therefore, his/her
domicile is his/her last known address before entering into
the nursing home, even if he/she no longer owns or rents the
residence.
How do I get a copy of a death certificate?
The funeral director usually purchases several originals for
your use. You may obtain them from the Vital Statistics/Death
Records Department in the municipality in which the person died.
See NYS
Vital Records.
How do I get a copy of a birth certificate?
See
NYS Vital
Records.
When searching the NYS Unclaimed Funds website, my mother's
name was listed. I was told I had to have a certificate from
Surrogate's Court. What do I do?
Contact the Surrogate's Court in the County where your mother
resided at the time of her death. If a proceeding was filed
there, the person who acted as Executor or Administrator would
send the Court $6.00 and request a certificate of letters. If
the estate is older than two years, an affidavit would be required
explaining why you need the certificate at this time. If no
estate proceeding was filed, and the amount of the unclaimed
funds is less than $20,000.00, you may do a small estate proceeding.
If over $20,000.00, you must do a probate or administration
proceeding.
My father died and the only asset is his house. Do I
have to file a proceeding in Surrogate's Court to get it turned
over to my sisters and me?
Not necessarily. By operation of law, real property vests in
the distributees at time of death. If he died intestate (without
a will), the property is owned by you and your sisters at the
time of his death. You should contact the tax office to see
what their requirements would be to list you as owners. You
may also wish to consult a real estate attorney to prepare a
deed to make the title to the property "cleaner".
If he died testate (with a will), the property would be devised
as set forth in the will and a probate proceeding may be necessary.
I was adopted when I was a baby. I want to find my birth
mother. Can I review my adoption records in Surrogate's Court?
No. Adoption records are sealed. Please see our web
page on Adoptions for additional information.
My daughter has a guardianship account. She has just
turned 18 and is entitled to her money. What do I do?
You must petition Surrogate’s Court to close the guardianship
account and to discharge the guardian(s) of his/her/their duty/duties.
Contact the Surrogate’s Court where the guardianship was
granted to have the forms sent to you and for further instruction.
Once the forms are submitted to the Court, and upon approval,
an Order to Close the guardianship account will be issued. The
Court will provide you with a certified copy of the Order for
you to take to the bank to have the funds released.
Can I withdraw funds from a guardianship account to
purchase clothes for my son?
Yes, subject to Court approval. You would contact the Court
where the guardianship was granted and request an application
to withdraw funds. Submit same to Court and if approved, it
will provide you with a certified copy of the Order for you
to take to the bank to have the funds released.
I want to move the money in a guardianship account at
a local bank to a brokerage account where it will earn more
interest. Can I do that?
Yes. Investing in stocks and bonds is allowed where prior approval
of the Surrogate has been obtained. You must petition the Surrogate’s
Court to invest the guardianship funds and attach a copy of
the proposed investment advisory agreement. However, it is important
to keep in mind that the Surrogate may also review the investment
fees in determining whether the petition will be granted. In
addition to savings accounts, guardianship funds may also be
invested in Certificate of Deposits and government bonds. All
deposits and investments are subject to Court approval and must
be held jointly with the Chief Clerk of _________ County Surrogate’s
Court and must be restricted from withdrawals without a Court
Order.
My spouse died in a car accident. I have hired a lawyer
to sue the driver of the other car. There are no assets other
than the lawsuit. Does a proceeding need to be filed in Surrogate's
Court?
Yes. A probate proceeding or administration proceeding would
be necessary. The Executor or Administrator would then be able
to bring about the action in Supreme Court. When a settlement
is reached or a trial has been concluded, a proceeding would
be brought in Surrogate's Court to allocate the settlement proceeds
between the distributees and/or estate.
Do you have to list non-probate assets on the Form 207.20,
Assets and Inventory?
Yes. The list of assets must constitute the gross estate for
tax purposes, but separately list: a) those assets that either
were owned by the decedent individually, including those in
which the decedent had a partial interest, or where payable
or transferable to the decedent's estate, and b) those assets
held in trust, those assets over which the decedent had the
power to designate a beneficiary, jointly owned property, and
all other non-probate property of the decedent.
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