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The practical answer to the question “Do I need a death certificate to probate a will?” is yes. In a practical sense, the Surrogate’s Court generally requires a death certificate in order to probate a Will, as it needs the certificate to prove that the Testator is deceased, and that the court has jurisdiction over the matter, among other things.
It may seem obvious, but the death certificate is one of the most important documents in an estate proceeding, and without it, there will be significant roadblocks to probating the Will or obtaining Letters of Administration (when the decedent dies without a Last Will and Testament).
The need for a death certificate can oftentimes cause delay in commencing an estate proceeding such as an Administration Proceeding or a Probate Proceeding. Usually, if there is a funeral home handling the disposition of remains of the decedent, the funeral home obtains certified copies of the death certificate and will provide them as requested. It is prudent to obtain a number of death certificates from the funeral home as they will be needed for the estate proceeding, the estate administration, and/or to collect assets that passed by operation of law from financial institutions.
Another option to obtain death certificates is to order them through the New York State Department of Health, or if the decedent was a New York City resident, the New York City Department of Vital Records. Only certain individuals are eligible to obtain a death certificate copy, such as a spouse, parent, child or sibling of the deceased, or other persons who have documented a lawful right or claim, documented medical need, or have a New York State Court Order directing the release of the death certificate to them.
Sometimes, even when a petitioner has a death certificate, there may be issues with the information contained in the death certificate that can also create issues. For example, there could be a typographical error or incorrect information about the decedent on the death certificate. These types of errors can occur due to an inadvertent error when the information about the decedent was being transmitted or transcribed, or if the person providing the information about the decedent gives inaccurate information.
These types of issues will need to be addressed either in the form of a corrected death certificate or, if it is acceptable to the court, an affidavit addressing and explaining the issue.
In other cases, where the decedent, who was a New York domiciliary, dies out of state, the court may require an affidavit confirming that the decedent was a New York domiciliary and explaining why the decedent was out of state. This happens typically when the decedent was a “snowbird” and spends part of the year in another state.
No matter what issues you may be presented with, it is important to have guidance from an experienced law firm when commencing an estate proceeding.