When a person domiciled outside New York dies owning a home or tangible personal property in New York, a petition to the New York Surrogate’s Court is generally required to gain access to the decedent’s New York situs assets because decedent’s property located in New York at the time of death is ordinarily subject to the jurisdiction of New York’s Surrogate’s Courts.
The petition to gain access to the decedent’s New York property is called an “Ancillary” Proceeding. This is so because it is an additional, separate proceeding which is “ancillary” to an original court proceeding in the decedent’s state of domicile (or if the decedent was not a U.S. citizen or resident, in the decedent’s home country). The original proceeding is called a probate proceeding if the decedent died leaving a Will. If there is no Will, the proceeding is called an administration proceeding.
Filing a petition. A petition in an ancillary proceeding may be filed by any person interested in the decedent’s estate, including the nominee of the Will, or, if none, a family member or a creditor. For either ancillary probate or administration proceedings in New York, the petition is filed with the Surrogate’s Court in the county where the property is located. The Surrogate’s Court will then appoint a personal representative to collect the New York assets, to pay any debts or creditors within New York State and to pay any New York State income or estate taxes. Once the collection and payment process is complete and any Federal estate taxes have also been satisfied, the ancillary personal representative distributes the property to either the personal representative appointed in the place where the decedent was domiciled or to the appropriate beneficiaries directly. An ancillary petition requires authenticated copies of the documents from any proceeding taking place in the decedent’s home state (or home country). The petition identifies the assets in New York and the names and addresses of all persons interested in the estate and any known creditors within New York State.
Appointment of an Ancillary Executor or Administrator. The proposed Ancillary personal representative (“Executor” if there was a Will or “Administrator” if no Will) must qualify to be appointed by the Court. A person may not be permitted to qualify as an Executor or Administrator if they are a minor, incompetent, a felon or non-citizen non-resident person.
If the decedent was a citizen of a foreign country not domiciled in the U.S. at time of death, there may be tax treaties between the decedent’s country and the United States governing the question of whether estate taxes in the U.S. (federal or state) are applicable. If the decedent was domiciled in another U.S. state, the estate may be subject to estate tax under three taxing authorities: New York State, the domiciliary state and the federal government.
Distribution of New York Assets. After the Ancillary Executor or Administrator has collected all New York assets, paid all New York debts, taxes and expenses and met any federal estate tax obligation, the New York assets can be distributed to the personal representative or the appropriate beneficiaries.
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