Understanding New York’s Probate Process: No “Common” vs. “Solemn” Forms

Disclaimer: This article is for educational purposes only and does not constitute legal advice. Always consult a qualified attorney in your jurisdiction for guidance on your unique situation.

Detailed Answer

Unlike North Carolina, New York law does not distinguish between “common” and “solemn” form probate. Instead, the Surrogate’s Court Procedure Act (SCPA) provides a uniform process for proving a will or administering an estate when there is no valid will.

1. Letters Testamentary

When a decedent dies leaving a valid will, the executor named in that will applies for letters testamentary. These letters authorize the executor to collect assets, pay debts and taxes, and distribute property according to the will.

Key statute: SCPA § 702 (SCPA 702).

2. Letters of Administration

If there is no valid will, an interested party—often a spouse or next of kin—applies for letters of administration. These letters empower the administrator to perform the same tasks an executor would, but distributions follow the rules of intestacy under the Estates, Powers & Trusts Law (EPTL).

Key statute: SCPA § 703 (SCPA 703); EPTL § 4-1.1 et seq. (EPTL 4-1.1).

3. Small Estate Procedures

For decedents whose estate assets total $50,000 or less (personal property only), New York offers a simplified affidavit procedure that bypasses full probate or administration.

Key statute: SCPA § 1315 (SCPA 1315).

4. No Separate “Common” vs. “Solemn” Form

In jurisdictions that use “common” and “solemn” forms, solemn probate requires stricter proof (e.g., witness testimony) when a will’s validity is contested. New York’s unified process addresses credibility and contests through probate hearings and objections under SCPA § 1404 (SCPA 1404), rather than by labeling forms as common or solemn.

Helpful Hints

• Start by locating the decedent’s will, if any. That determines whether to seek letters testamentary or letters of administration.
• Review asset values to see if you qualify for the small estate affidavit under SCPA § 1315. It can save time and court fees.
• File all necessary SCPA forms at the Surrogate’s Court in the county where the decedent lived at death.
• Notify known creditors and beneficiaries as required by SCPA § 207 to avoid potential objections or delays.
• Consider consulting an estate attorney if the will is contested or the estate has complex assets or tax issues.