By: Jessica A. Saio, Esq.

When a loved one passes away, determining how to handle their estate can feel overwhelming. Two common estate proceedings in New York Surrogate’s Court are probate and administration. While both involve settling a person’s estate, the appropriate proceeding generally depends on whether the person left a valid Last Will and Testament.

What Is a Probate Proceeding?

Probate is the process used when a person dies with a valid Last Will and Testament. The Will is submitted to the Surrogate’s Court, which determines whether it should be admitted to probate and appoints the Executor named in the Will.

Once appointed, the Executor receives Letters Testamentary, which provide the legal authority to collect and manage estate assets, address debts and expenses, and ultimately distribute the remaining property according to the terms of the Will.

Probate generally applies only to assets that were owned by the decedent individually. Assets held jointly with rights of survivorship, accounts with valid beneficiary designations, and assets properly titled in a trust typically pass outside of the probate estate. 

What Is an Administration Proceeding?

When a person dies without a valid Will, they are considered to have died “intestate.” In that situation, an Administration Proceeding may be necessary to appoint someone with legal authority to handle the estate.

Instead of an Executor receiving Letters Testamentary, the Surrogate’s Court appoints an Administrator and issues Letters of Administration. New York law establishes who has priority to serve as Administrator, generally beginning with the decedent’s closest surviving family members.

Because there is no Will directing how the estate should be distributed, the estate is distributed to the decedent’s “distributees” in accordance with New York’s laws of intestate succession. Depending on the decedent’s family circumstances, this may include a surviving spouse, children, parents, siblings, or more distant relatives.

Understanding the distinction between probate and administration can help families know what to expect after the death of a loved one and determine the appropriate process for settling the estate. Our attorneys at Littman Krooks LLP assist families with both probate and administration proceedings, guiding them through the Surrogate’s Court process and addressing the legal and practical issues that may arise along the way.