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Is there a time limit on filing probate in NYS

Norwich, NY |

My father passed 6 months ago and all property in his name. His wife has not filed for probate is there a time limit?

Question: Do you have to have an original will to file in surrogate court? The day he found out about terminal illness he drafted a will with an attorney but took the original and never filed it. His wife can not find it so I believe he destroyed it.

Question: In NYS all properties go to spouse and siblings with no will Since rental property still in my deceased fathers name are the siblings entitled to rental income that the spouse is collecting? Also are his children untitled to use of property (lake house)until court?

Attorney Answers 4


  1. Best answer

    There is no time limit on petitioning for probate of a will. If you can't locate the original will, there is a presumption that it has been revoked by destruction. You would have to rebut that presumption in any proceeding to probate a copy, not an easy task. When a person dies intestate (without a will ) New York's law of decent and distribution provides that the surviving spouse receives $50,000.00 and one-half of the balance of the decedent's estate. In addition, the surviving spouse id entitled to certain exempt property of the decedent, $25,000.00 in cash, a vehicle worth up to $25,000.00 and other personal property such as household furnishing worth up to $20,000.00. This only applies to property held just in the deceased's name. Property held jointly or with a designated beneficiary goes to the joint owner or beneficiary.

    The answer to this question should not be construed as legal advice and does not create a lawyer-client relationship. You should consult a lawyer before taking any action regarding your matter.


  2. In NY I don't believe the there is a specific statute of limitations to commence probate, but as with most things- the sooner the better.

    Yes, you have to file an original will in surrogates court as a general rule. As with most general rules there are always exceptions. With the facts given, the attorney may have a conformed copy that the court may accept, but this is not a guarantee. If not the estate will pass by operation of law.

    NYS has specific laws as defined in the EPTL to what happens when the decedent passes without a will. It depends on how the family tree looks at the time of death.

    Please contact an Estates/Probate attorney and he or she will guide you through the process.


  3. If there's no will, it's not a probate, it's an administration. All his property doesn't automatically go to spouse AND children, there's an order that the courts will follow, starting with spouse. If no spouse, then children. If no children, then siblings... and it goes out from there. The court will appoint an administrator, likely his wife. You will have the right to object to the distribution, and depending on the facts, you might be successful but chances are she gets it all.

    I may be guessing or not licensed in your state. No atty/client relationship exists.


  4. My colleagues all give you good advice. I just wanted to briefly expand on one issue. As you were advised, if an original will cannot be located, there is a presumption of revocation. That's because the "ceremony" to revoke a will is no more complicated than tearing it up and putting it in the trash. NY does have a procedure to probate a lost or destroyed will, but in the absence of extraordinary circumstances, the Surrogate's Court is likely to find that any such proceeding has not overcome the presumption of revocation.

    Good luck to you.

    Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.

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