Heir Rights (NY)

Legal team for heir

As an heir, you likely have questions about the inheritance process, and your rights.

Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).

Rights Under Probate

Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.

However, estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.

Your rights as an heir include:

  • Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
  • Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
  • Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see Family Entitlement details for your state).
  • Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
  • Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
  • Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.

Additional considerations:

  • Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See Rules of Inheritance for details.
  • Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
  • Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
  • Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.

Small Estate Rights

Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.

In New York, full probate is not required for "small" estates: an executor can instead request Voluntary Administration, saving considerable effort and cost.

Small Estate Definition

In NY, an estate qualifies as "small" if the qualified gross value is <$50,000 (value assets as of the date of death; ignore debts).

Assets jointly owned with other people, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions should not be included in this valuation.

NY also provides a family exemption that may exclude up to almost $100,000 of personal property (see NY Personal Property Exemptions).

Note that real property (i.e., real estate) cannot be handled via the small estate process, so if the estate contains real property owned solely by the decedent, you may need to go through probate regardless of overall estate value (see NY SCPA § 1302).

See NY SCPA § 1301.

Voluntary Administration Process

If the estate qualifies as "small", you can bypass full probate and use voluntary administration to settle the estate:

  1. File an affidavit of voluntary administration with the local Surrogate's Court (there is no mandated waiting period after the death)
  2. The court will notify certain parties, then create a certificate giving you authority to act as executor
  3. You can use this certificate obtain possession of estate assets from their current custodians
  4. Settle the estate in the normal manner (pay all debts, distribute assets)
  5. File an account report form with the court showing what you collected and disbursed

You can find additional NY small estate forms online (not normally needed).

See NY SCPA Article 13.

Affidavit of Voluntary Administration

You can generate an affidavit for voluntary administration online, or you can fill out the NY affidavit form directly. You will need to include:

  • Name and address of decedent
  • Name and address of all close relatives
  • List of all assets and unpaid debts

File the affidavit with the local Surrogate's Court (see below), and attach:

  • Name and address of the decedent
  • Certified copy of the death certificate
  • Copy of the will (if any)

You will need to get the affidavit notarized before submission.

Estate Settlement Considerations

Estate debts have priority over most distributions, so you should arrange to have all debts resolved before distributing assets using the approaches described on this page. Other than under the Small Estate Set Aside (which eliminates most debts), unpaid estate creditors have the right to sue heirs for the value of any distributions received.

Before paying any debts or making any distributions, be sure to account for any NY Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.

If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.

See also Making Distributions.

No Small Estate Affidavit

Many people ask about using a small estate affidavit without any court involvement, but NY does not support such an affidavit. You must use one of the above methods (or full probate) for handling small estates in NY.

Court

In New York, your estate's local Surrogate's Court, a New York City Surrogate's Court or county Surrogate's Court outside New York City, handles wills and estate proceedings (including probate).

See NYCourts Probate website for additional helpful information.

Estate Debts

Finally, note that as an heir, you are NOT responsible for paying the debts of the estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.

If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.

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