Frequently asked questions

Probate is the court process by which New York confirms that a will is valid, then works through what happens to the property. The Surrogate’s Court accepts the will, an executor or administrator is appointed, assets are gathered and valued, creditors are notified and paid, and whatever is left is distributed to the people named in the will — or, if there is no will, to the people New York law names.

New York requires a waiting period to pass after a death before most probate petitions may be filed, so no estate is settled immediately. Beyond that statutory period, a full administration commonly takes many months rather than weeks, and the honest answer is that nobody can promise you a date in advance. What actually drives the length is the size and complexity of the estate, whether property has to be sold, whether the will is contested, whether creditor claims and tax filings need attention, and how the Surrogate’s Court calendar is running. If you have been given a specific deadline, tell me — that changes the order of work substantially.

Without a will, New York’s intestacy laws decide who inherits. The distribution is set by statute: a surviving spouse and descendants come first, and if there are no descendants the estate passes outward through parents, then brothers and sisters, and so on. It also becomes harder to know which assets pass through probate at all. In a blended family, or where a partner is not legally married, or where there are children from more than one relationship, intestacy can produce a result nobody in the family would have chosen. A properly executed will removes that uncertainty.

No, and this is the single most useful thing to establish early. A small estate may qualify for simplified administration, which is a much lighter process. And any asset that is properly titled — in a revocable trust, as a beneficiary of a retirement account, or with a payable-on-death or transfer-on-death designation — generally passes to that beneficiary without probate at all. The reason to look carefully is that a great deal of what families own is titled in ways that defeat their plan. A house held only in the deceased’s name, for example, usually does go through probate.

An executor is the person named in the will whose job is to carry it out. In practice that means gathering the paperwork, identifying and valuing the estate’s assets, securing and valuing the property, paying creditors and taxes in the right order, keeping careful records, filing an inventory and then accountings with the court, and finally distributing what remains. The Surrogate’s Court supervises this. It is a substantial administrative job with real legal duties attached, and it is quite common for an executor to hire a lawyer to handle the court work while they continue to manage the estate.

Yes. New York law recognises several grounds for challenging a will, including that the person lacked capacity when it was signed, that someone exerted undue influence, that there was fraud or forgery, or that the execution itself was defective. Time matters: a contest generally has to be brought within a statutory window after the will is admitted to probate, which is a deadline that passes whether or not anyone knows about it. Whether contesting a will is realistic depends on the facts and the evidence, and it is expensive. I represent people on both sides — defending a will that is being challenged and bringing a challenge where the facts support one — and I will give you an honest read on which you are dealing with.

A will is a set of instructions that take effect after death. It says who gets what, and it names guardians for any minor children. It is a public document, and assets passing under it generally go through probate. A trust is different in kind: you transfer assets to a trustee who holds them for beneficiaries. Properly funded, those assets pass outside probate, the transfer is usually private, and — this is the part people most often overlook — you can set conditions and timing, so a beneficiary might receive income while they are young and the principal later. Many families use both. Which combination suits you depends on what you own, who your beneficiaries are, and how much privacy and control matter to you.

Most families who come to me need both, but the right answer genuinely depends on the estate. If you have a home, retirement accounts, a life insurance policy and minor children, you almost certainly need a will at minimum. A revocable trust becomes worth considering once there are assets of meaningful size, a desire to avoid probate, real concerns about privacy, or beneficiaries who need age or timing controls. A good plan also covers the things a will cannot: who decides for you financially if you cannot, and who decides for you medically. Those are a power of attorney and a health care proxy.

Choose for two things at once: trust and capability. The executor has to keep track of every asset, deal with banks and the court, and often manage a property. Spouses and adult children are common choices, and a lawyer or accountant can be appointed where you want neutrality or do not want the burden on a family member. Two practical points people are often surprised by. First, an executor who is willing on paper but lives in another state or overseas adds cost and delay, because court process generally runs where the person serving. Second, whoever you pick should be someone who will still be willing and reachable in five years’ time. I can walk you through the tradeoffs for your specific family.

Guardianship is the court-supervised answer when an adult can no longer make decisions for themselves. A judge, usually in Surrogate’s Court, appoints a guardian and sets out exactly what that guardian may and may not do. There are different kinds: a guardian of the person handles health care and daily living; a guardian of the property handles finances and assets; and a guardian of both does everything. The court does not simply hand over control. It receives evidence, can require a hearing, and continues to supervise what the guardian does afterwards.

This is the most important distinction in elder law, and it is fundamentally about timing. A power of attorney is proactive: you choose your agent while you are well, and it takes effect if you become unable to act. No court is involved, which is far cheaper and faster. Guardianship is reactive: it exists for the situation where capacity has already been lost and no valid power of attorney was put in place. That is why planning ahead is so consequential. A guardianship proceeding costs substantially more, takes months, and hands decisions to a judge who did not know you. A signed power of attorney avoids all of that.

Frequently several months, and considerably longer if anyone objects. What drives it is the Surrogate’s Court calendar, how quickly medical and functional evidence can be assembled, whether the proposed guardian is acceptable to the family, and whether temporary or emergency relief is needed in the meantime. If the situation is urgent — someone is at real risk and cannot be left as they are — an emergency or temporary guardianship can sometimes be obtained faster, but that requires demonstrating immediate necessity. I will tell you honestly which route your facts support.

Yes, and it happens more often than people expect, usually because a family disagrees about whether it is necessary at all or about who should serve. Grounds include insufficient evidence of incapacity, an unsuitable proposed guardian, improper service, or that the guardian’s authority is broader than the person needs. I act for petitioners, for proposed guardians, and for family members opposing a guardianship. What matters is the evidence: medical records, functional capacity, and a clear picture of how this person actually manages their affairs.

Frequently, yes — and avoiding guardianship is the goal of good elder law planning. A valid power of attorney covering finances and a health care proxy covering medical decisions usually remove the need for a court proceeding altogether. There are also lesser-involvement routes: a voluntary arrangement where someone accepts help while retaining control, or a supported decision-making model where a person keeps their own rights with assistance rather than losing them to a guardian. Where none of that is viable and a guardian is genuinely necessary, the court prefers the least restrictive option that meets the person’s needs.

This is where families get into real difficulty, and where general advice goes wrong. Medicaid looks back at transfers of assets made before a person applies, and transfers made for the purpose of qualifying can result in a denial of coverage or a penalty period — you pay privately for care during the penalty. How far back the review reaches, what counts as a transfer, and what the penalty is depend on the circumstances and the rules in force at the time. Exempted assets, including certain trusts and the treatment of a home, complicate it further. What I will not do is promise a strategy that avoids a penalty, because anyone who does is guessing at something fact-specific and agency-dependent. What I can do is understand what you have done, explain where you stand, and plan forward.

Often there is room to work with, and often people have given up a home unnecessarily because they assumed nothing could be done. A principal residence is treated differently from other assets under New York rules, and there are exemptions and protections that can apply — depending on who lives there, whether a spouse is in the home, and whether there is other countable property. The fact that these protections exist does not mean you can rely on them without checking your particular position first. This is a conversation worth having well before care is needed, when there are still choices to make.

No. Most of the people who benefit most from elder law advice are in their fifties and sixties, planning for a parent rather than for themselves. The reason is simply that the useful decisions have to be made before there is a crisis: who will be the agent on your power of attorney, how a house is titled, whether a spouse will need income. By the time long-term care is imminent, many of the better options are already closed. Planning is also cheaper and calmer than reacting, which matters when a family is already under strain.

They need to be considered together, because a document that made sense when you wrote it can undermine your long-term care plan. This happens more often than people expect. A trust with broad language may be treated differently from what you intended. A power of attorney may be drafted in a way that does not account for the management a future home-health situation would require. A will may name an executor who cannot manage a property. The practical advice is to review the estate plan and the long-term care plan together, not separately, and to revisit both whenever your health, your family, or your property changes.

Suite 504 at 118-21 Queens Boulevard in Forest Hills, New York 11375. The telephone number is (718) 544-1000. Forest Hills is a short drive or ride from the Queens County Surrogate’s Court in Kew Gardens and the Queens criminal courthouse, which is relevant if you have a court date there.

Enquiries are handled in the order they arrive and as promptly as the practice can manage, but I would rather tell you plainly that I cannot guarantee a response time than promise one I cannot keep. If your situation is urgent — a court date, a filing deadline, a family member in immediate difficulty — please call (718) 544-1000 rather than sending a message through this site. If you would rather email, the address is contact@queens-probatelawyer.com.

No, and this is worth being explicit about. Reading this website, or calling, or sending a message through the contact form, does not create an attorney–client relationship, and nothing here should be treated as advice about your situation. A relationship is formed only when the practice agrees to take the matter and you accept — normally confirmed in writing after a consultation. That matters for more than formality. Until then, do not send me anything you would not want disclosed, and be careful about what you say to anyone else about your situation.

Queens, Brooklyn, Nassau County and New York City, from a Forest Hills office. Much of the work is in Queens County, where the Surrogate’s Court sits in Kew Gardens, but the practice accepts matters across the city and into Nassau. If you are outside these areas and the matter is substantial, call and ask before making a trip.