The New York Probate Lawyer Blog has published many articles about administering a New York Estate. At the commencement of administration, an essential issue is whether a decedent had executed a Last Will and Testament, or whether he died intestate. This issue determines the type of proceeding which will be filed in the Surrogate’s Court. If there is a Will, a probate proceeding is started. Where there is no Will, a petition for letters of administration is utilized. In each case, the goal is to obtain the appointment of an estate fiduciary, whether an executor or administrator.
Also, each type of proceeding carries with it a host of other issues. A probate proceeding may involve the possibility of a Will Contest. Where there is no Will, there may be a contest as to which distributee should be appointed as the estate administrator. However, an issue which is pervasive regardless of the type of proceeding is where a decedent was domiciled at the time of death. Domicile is the place where a person has their fixed or primary home. Someone can have many residences but only one primary domicile. Domicile is important because the laws of a person’s domicile basically control many of the substantive issues regarding a person’s estate. Also, a Surrogate’s Court may not accept a case for filing and determination if a decedent was not domiciled within the Court’s jurisdiction.
For example, in some estates there may be an issue regarding a spouse’s right of election to receive a minimum share of a decedent’s estate. Generally, the issue of a right of election is controlled by the laws in a decedent’s domicile. Also, a New York Surrogate’s Court will generally not accept an estate filing for a decedent whose domicile is New Jersey.