4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Administrator, Executor. These terms are used in New York by definition as "any person" to whom letters of administration or letters testamentary, respectively, have been issued (See Surrogate's Court Procedure Act (SCPA) § 103(2) and (20)). The "trix" forms for a female are still sometimes in use, but are not officially defined.

Ascendant is not a term generally used in New York for an ancestor, although the word ascent is used as the opposite of descent.

Bequest or legacy. Defined in Surrogate's Court Procedure Act (SCPA) § 103(9) as "A transfer of personal property by will." In New York, the term "bequest" can include cash.

The definition of Distributee in New York under Surrogate's Court Procedure Act (SCPA) § 103(14) and Estates, Powers and Trusts Law (EPTL) §1-2.5 varies significantly from the definition in Underwriting Manual §4.04. A distribution in New York is not limited to personal property. The statutes governing descent and distribution in New York cover both real and personal property. The term Distributee replaced the separate common law concepts of heirs at law and next of kin. Prior to September 1, 1930, the rules of descent and distribution provided that a decedent's personal property went to certain blood relatives, the next of kin, and real property went to a separate class of blood relatives (usually the descendants of the decedent), the heirs at law. Significantly, the decedent's spouse was limited to dower or curtesy, and the surviving spouse of an intestate was neither an heir at law nor next of kin.

Estate. Defined in Surrogate's Court Procedure Act (SCPA) § 103(19) as "All of the property of a decedent, trust, absentee, internee or person for whom a guardian has been appointed as originally constituted, and as it from time exists during administration." The Estates, Powers and Trusts Law (EPTL) defines Estate as, depending on context, "(a) the interest which a person has in property." or "(b) the aggregate of property which a person owns." The term "Estate of Inheritance" is not used in New York.

Fiduciary is defined in EPTL §1-2.7 as "a person who meets the description, in this part, of a "personal representative" or who is designated by the creator or by the court to act as an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of a power during minority." The SCPA definition, in SCPA §103(21) is different, listing specific classes of personal representative as well as the donee of a power during minority.

Gift Tax. In addition to the federal gift tax, New York State also imposes a gift tax. Tax Law Article 26-A (§1001 ff.).

Holographic Will. Unless made in a jurisdiction recognizing holographic wills, such unwitnessed wills in the decedent's handwriting are not admissible to probate in New York.

Inchoate right of Dower, Curtesy. These rights were abolished in New York, prospectively, by statute effective September 1, 1930 (Laws of 1929, Ch. 229; Real Property Law §189 as to curtesy, and §190 as to dower).

Laws of Descent and Distribution. In New York State, the distinction between descent and distribution was abolished effective September 1, 1930 (L. 1929 Ch. 299).

Per capita, per stirpes, representation. These are types of distribution of an estate:

Per Capita. EPTL §1-2.11 defines as a disposition or distribution of property made to persons, each of whom is to take an equal portion of the property. A lapse of a portion of a per capita distribution goes to the other legatees or devisees(To Mary, Gary and Ted, per capita, where Ted has predeceased, is ½ to Mary and ½ to Gary).

Per stirpes. EPTL §1-2.14 defines as a gift to issue of a deceased ancestor as follows:

"The property is divided into as many equal shares as there are (i) surviving issue in the generation nearest the deceased ancestor which contains one or more surviving issue and (ii) deceased issue in the same generation who left surviving issue, if any. Each surviving member in such nearest generation gets one share. The share of a deceased issue in such nearest generation who left surviving issue shall be distributed in the same manner to such issue."

For example: Where the widow Anne Cestor has died, having been predeceased by (a) her daughter Daphne, who left no issue, (b) her son John, who was survived by a single child, John, Jr., and (c) by her son Ted, who left three children; and Ann Cestor has left two living children at the time of her demise (Mary and Gary), the per stirpes distribution is as follows: There are four shares (none for Daphne, as she had no issue). Mary and Gary get one share each, John Jr. receives John's entire share, while Ted's three children share equally in his portion. If one of Ted's children had predeceased Ann Cestor while leaving issue, Ted's 1/3 share would be divided in three, with one share each to the surviving children, while the issue of the deceased child would divide the final share.

Prior to September 1, 1992, per stirpes was used in the law of descent and distribution. By Chapter 595 of the Laws of 1992, intestate distribution in New York is now by representation.

Representation. A disposition by representation is defined in EPTL §1-2.16 is similar to the per stirpes disposition, except that equal shares are passed on a generational basis. In the previous example, a distribution by representation would result in John's and Ted's shares both falling to the next generation, where they would be combined and divided evenly among all the members of that class. This would reduce John Jr. to ¼ of the total of the two shares (from John's entire share), with Ted's three children also each receiving ¼ of the total of the two shares. If one of Ted's children had predeceased leaving issue, that ¼ of the two combined shares would fall to that class to be divided.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

Where a paper purporting to be a will has been filed in the Surrogate's court and probate proceedings have not been instituted in a reasonable time or, if instituted, have not been diligently prosecuted, the Surrogate's Court may grant letters of administration (SCPA §1001(9). There does not appear to be any applicable statute of limitations.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Community property rights. New York is not a community property state. However, since September 1, 1981, with the adoption of the New York Uniform Disposition of Community Property Rights at Death Act (L. 1981, Ch., 187, EPTL §6-6.1 ff.), New York provides a mechanism for distribution of community property of persons who move to New York after having resided in and acquiring property in a state recognizing community property rights. The potential effect on real property located in New York is where the property was purchased with "rents, issues, or income of, the proceeds from, or in exchange for, property acquired as, or which became, and remained, community property under the laws of another jurisdiction, or property traceable to that community property." Parties who sell their home in California or another community property state, and purchase a home in New York with the proceeds, may invoke community property rights as to the New York property.

Tenancy by the entirety. Tenancy by the entirety is recognized in New York as to real property, and since January 1, 1996, as to the shares of stock allocated to a cooperative apartment unit. Upon the death of the first spouse to die, the survivor is seized of a fee simple absolute (EPTL Article 6, Part 2. EPTL §6-1.1). A disposition of property to a husband and wife creates a tenancy by the entireties automatically, unless another form of ownership is specifically stated (EPTL §6-2.2(b)). Usually, the deed will state "husband and wife" or "his wife" after the parties' names, but such words are not necessary for the creation of the tenancy by the entirety.

The use of words which would imply a tenancy by the entirety, but in a disposition of real property to persons who are not actually married, is presumed to create a joint tenancy since September 1, 1975 (L. 1975, Ch. 263, amending EPTL §6-2.2). Prior to that time, such a disposition created a tenancy in common, unless found by a court that the intention of the parties was to create a joint tenancy.

Dower. The inchoate right of dower was prospectively abolished in New York by statute effective September 1, 1930 (Laws of 1929, Ch. 229; Real Property Law §190 as to dower).

There are three prerequisites for the existence of dower rights:

  • the parties were married prior to September 1, 1930;
  • seizing of an estate of inheritance prior to such date and during the marriage; and
  • death of the husband leaving the wife surviving.

Dower did not attach to a leasehold estate. The husband could not alienate the wife's dower right. Thus, where a dower right existed, it was necessary for the wife to join in the deed in order to convey free of the right. Where a surviving spouse has a right of dower, she could elect to take her share in intestacy, or elect her dower right, but could not take both (See §82 of the former DEL, interpreted in Bush v. Bush, 151 Misc. 196, 270 N.Y.S. 14, affirmed 241 A.D. 912, 271 N.Y.S. 1047. Also see EPTL §4-1.1(e)).

It is extremely rare to find a situation affected by inchoate dower rights today in New York.

Curtesy. These rights were abolished in New York, prospectively, by statute effective September 1, 1930 (Laws of 1929, Ch. 229; Real Property Law §189 as to curtesy). Curtesy involved a life estate in the husband in the wife's property, provided a child has been born alive of the marriage and the wife has not disposed of her lands by will. Unlike dower, curtesy could be defeated by a conveyance made by the wife or a disposition of the property by will.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

New York state recognizes several forms of joint ownership. These are summarized in EPTL §6-2.1. Title held in the name of joint tenants passes by operation of law to the survivor.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Spousal Right of Election. When dower and curtesy were abolished in 1930, the surviving spouse became entitled to a right of election against the will of a decedent who died and had a will made after August 31, 1930. The right has evolved over time, and there are four (4) time periods with different rules in effect. The time periods involved:

  • where will was executed after August 31, 1930 and before September 1, 1966
  • where will was executed after August 31, 1966
  • where decedent died intestate after August 31, 1966 (as to all or a part of estate).

The various rules relating to the right of election are set forth at length in EPTL §§5-1.1 and 5-1.1A..

Afterborn children. Where a child was born after execution of the will (even posthumously), the child may be entitled to a portion of the estate (See EPTL §5-3.2).

New York Uniform Disposition of Community Property Rights at Death Act. Since September 1, 1981, with the adoption of the New York Uniform Disposition of Community Property Rights at Death Act (L. 1981, Ch., 187, EPTL §6-6.1 ff.), New York provides a mechanism for distribution of community property of persons who move to New York after having resided in and acquiring property in a state recognizing community property rights.

Summarize the steps required for a testate administration. Provide statutory citations.

Probate proceedings in New York are governed by SCPA Article 14.

Petition. The probate petition and will are filed with the Surrogate's Court. SCPA §1402.

Citation. Process is issued to the interested parties who have not waived citation. SCPA §1403.

Probate. The will must be produced and "proved" by the witnesses (SCPA §1406), although a lost or destroyed will can be admitted if established that it was not revoked and the will provisions are clearly and distinctly proved by at least two credible witnesses, or by a copy or draft of the will (SCPA §1407). Notice of Probate is filed with the court before letters are issued (SCPA §1409). Objections can be filed by interested parties (SCPA §§1410, 1411)

Letters Testamentary. Depending on whether objections have been filed, or whether there is an immediate need to administer the estate, preliminary letters testamentary may be issued, on appropriate notice (SCPA §1412). After the will is admitted to probate, letters testamentary may be issued (SCPA §1414), or, where appropriate, letters of administration with will annexed (SCPA §1418).

Summarize the steps required for an intestate administration. Provide statutory citations.



Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and provide a sample of any forms.

The Standards For Title Examination promulgated by the Executive Committee of the New York State Bar Association (approved 1955, revised December 1963 and January 1976) (found as an appendix to Chapter One of Real Estate Titles, Second Edition, Pedowitz, Ed., NYSBA 1994) contains a section on proof of heirship.

Section 25 of the Standards is substantially similar to the New York State Land Title Association's Recommended Practice E-8.

Where a deed has been on record for more than ten (10) years, containing a recital that the grantors are the heirs or distributees of the former owner, and either (a) the estate tax petition contains a statement that these are the only parties interested in the estate, or (b) a petition for letters of administration shows the same, no further proof is required.

Title companies will often pass title on the basis of a death certificate, plus an affidavit of heirship and intestacy from at least one blood relative of the decedent having no financial interest in the transaction. We will accept an heirship affidavit from the surviving spouse identified on the death certificate.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

Voluntary Administration (not applicable where real estate is involved). SCPA Art. 13

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

Temporary Administration ? absentees and internees. SCPA Art. 9.

Do your state statutes provide for an "inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

The New York estate tax (Art. 26 of the Tax Law) is based on the total value of the estate.

Where the decedent died after July 1, 1978 and prior to June 8, 1994 the question of New York State estate taxes may be passed on the basis of an affidavit establishing that the decedent's gross estate, including the subject property, is not more than $108,333.00.

Where the date of death is on or after June 8, 1994, and before June 8, 1995, the threshold amount is $115,000.00. See Tax Law §952(b).

Since June 8, 1995, the $115,000.00 figure need not include the net value of the decedent's principal residence, up to $250,000.00. (See Underwriting Bulletin No. NY000103 (95-26)).

The New York State estate tax return (Form ET-90) is required to be filed within nine (9) months of the date of death. Tax Law §972. The filing deadline may be extended, but the payment deadline can only be extended on a showing of undue hardship. Tax Law §976.

Do your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien? Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

The Federal estate tax is a lien on the real property owned by the decedent for ten (10) years (26 USC §6324). The New York State estate tax lien is a lien for fifteen (15) years from the date of death (Tax Law §982(a)). The lien attaches automatically. Article 26 of the New York Tax Law governs the estate taxation of residents and non-residents.

The commissioner of taxation and finance may issue a certificate of discharge of the state tax lien as to any or all of the property of the decedent (Tax Law §982(c)), which may be recorded in the office of the county recording officer (Tax Law §982(d)).

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

Part 1 of Article 11 of the Estates, Powers and Trusts Law (EPTL) sets forth the statutory powers of fiduciaries. If there has not been a specific disposition of property, a personal representative may sell that property without court order (See EPTL §11-1.1(a)(5)). Under the law in existence prior to September 1, 1967, any fiduciary (including an executor) had to obtain a court order to sell real property (DEL §123).

Can a personal representative for a testate administration sell property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

Part 1 of Article 11 of the Estates, Powers and Trusts Law (EPTL) sets forth the statutory powers of fiduciaries. If there has not been a specific disposition of property, and the will provides no limitation on the statutory authority, the personal representative may sell that property without court order (See EPTL §11-1.1(a)(5)). Where the letters issued have been limited and restricted, a court order may be necessary.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

Article 19 of the Surrogate's Court Procedure Act (SCPA) governs the procedure for disposition of real property of a decedent. Part 1 of Article 11 of the Estates, Powers and Trusts Law (EPTL) sets forth the statutory powers of fiduciaries. In 1965, the various statutes governing the powers of fiduciaries were consolidated into Section 127 of the Decedent's Estate Law (DEL), which was replaced as of September 1, 1967 with the EPTL provision.

Until January 1, 1994, a temporary administrator (applicable to both testate and intestate administration) was required to obtain a court order to sell real estate (former SCPA §904, repealed by L. 1993 Ch. 514). Section 903 of the SCPA provides the Surrogate with the power to limit temporary letters of administration. Where so limited, a court order would be necessary.

If there has not been a specific disposition of property, and there is no limitation on the executor's power expressed in the will, the personal representative may sell that property without court order (See EPTL §11-1.1(a)(5)). An application may be made for an order under SCPA Article 19 even if the will or statute otherwise permit the personal representative to dispose of the real property.

An Article 19 proceeding is commenced by verified petition under SCPA §1904. The petition may be made by the fiduciary or by an interested party. A creditor of the estate is an interested party.

SCPA §1902 sets forth the purposes for which the decedent's real property may be subject to disposition. Purposes include payment of funeral and administration expenses, debts (except mortgage liens but including judgments), estate and transfer taxes, debts or legacies, and payment of the distributive shares to the persons entitled to same. Lastly, the statute permits the proceeding for "any purpose the court deems necessary."

Payment of mortgage liens is specifically excluded, because the SCPA Article 19 proceeding is not intended as a substitute for mortgage foreclosure under Article 13 of the Real Property Actions and Proceedings Law (RPAPL).

Do your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

If the will was admitted to probate in a foreign state, New York's procedure for ancillary probate (as well as ancillary administration) for the estates of nondomiciliary decedents is found in Article 16 of the Surrogate's Court Procedure Act (SCPA) (Added by L. 1966, Ch. 953, effective September 1, 1967). Before September 1, 1967, the former Decedent Estate Law (DEL) contained a procedure for filing of an exemplified copy of a will, letters testamentary and other papers connected with probate of a will in another state. Upon such filing, the exemplified copy of the will was deemed to be proved, and the foreign executor was permitted to sell New York real property if permitted under such will. Section 1424 of the SCPA provides the only residual procedure involving an exemplified copy of the record of a will duly probated in another state, and that is limited to wills admitted to probate in the foreign state more than twenty years previously.

If the will was probated in a foreign state less than twenty years ago, the procedure for ancillary probate is set forth in SCPA Article 16. A petition is made to the Surrogate's Court (SCPA §1609), and process is issued to those parties entitled to same. If no ancillary letters are required, the only process required is to the state tax commission.

In order to pass title to New York real property, ancillary letters testamentary are not required, unless the executor is a foreign banking institution or the will does not give the executor the power of sale.

Additionally, New York will admit to original probate a will of a nondomiciliary where the will has not been admitted to probate in the state of the testator's domicile (SCPA §1605). An original probate of a will admitted in the testator's domicile is not eligible for an original probate in New York, unless (a) the court is satisfied that an ancillary proceeding would be unduly expensive, inconvenient or impossible, (b) where the testator has directed probate in New York, or (c) the laws of the testator's domicile discriminate against domiciliaries of new York either as a beneficiary or as a fiduciary.

Ancillary administration of the New York property of a nondomiciliary intestate decedent is provided for under SCPA §1607, based on a petition under §1609 and proof that letters of administration were granted by a competent court in the decedent's domicile (or proof that letters are not granted but that a person is acting in that jurisdiction in accordance with its' laws), the Surrogate's court may grant ancillary letters of administration.