New York City Probate Attorney

Having a comprehensive understanding of how the probate process works in New York is imperative for anyone that has a loved one who has recently passed away or is considering their own estate planning. Identifying an attorney who is knowledgeable about the probate process can give you a better understanding of what is involved in planning for your own estate as well as how to handle complex questions and situations that arise after the death of a loved one. Probate and estate administration refer to two somewhat similar court proceedings in which an individual is appointed in order to manage a decedent’s estate. The primary purpose of appointing someone in this role is to transfer the decedent’s assets to beneficiaries of the estate.

Probate is the official court process pursuant to which an estate is settled under the supervision of the surrogate’s court. The individual who will guide the estate through probate is typically named as the executor or personal representative in the decedent’s Last Will and Testament. An adult child or surviving spouse is usually named by the court to serve in this position if there is no one who is nominated in the decedent’s will. After being appointed this individual, again commonly referred to as a personal representative or an executor, has the legal responsibility and authority to value and gather the assets owned within the estate, to pay taxes and bills and to distribute any remaining assets to the beneficiaries or heirs. This is a legal responsibility, one that can result in significant liability to the executor if not handled properly, and one to be taken seriously.

The Purpose of Probate in New York

The primary purpose of probate is to minimize the opportunity for fraud after someone passes away. It is an involved and detailed process, the steps of which are highlighted below. Furthermore, it allows the identification and appraisal of all property in the estate and ensures that creditors and taxes are paid after someone passes away. After all of these tasks have been completed, the court issues an order stating that the estate is officially closed.

It is important to realize that not every estate needs to go through the full-blown probate process. First of all, if the estate falls below a particular threshold, it is categorized as a small estate and does not mandate court supervision for official settlement. Not all assets are subject to probate either. Some assets transfer automatically after the owner has passed away with no probate process required. The most common kinds of assets that fall under this definition include:

  • Community property with right of survivor-ship or tenancy by the entirety. Since these are forms of property ownership that function somewhat like the joint tenancy and are only available to married couples, they do not go through probate.
  • Joint tenancy: Since the joint tenant, also known as the survivor, becomes the owner of the entire asset when one joint tenant passes away, this transfers without requiring a court order because this is the right of survivor-ship.
  • Payable-on-death or transfer-on-death accounts: Some brokerage and bank accounts can also have named beneficiaries. The owner of the account can fill out particular forms with the company directly to determine who should get these account assets once the owner passes away.
  • Beneficiary designations: Life insurance policies and retirement policies come with their own forms that allow the owner of the policy to stipulate who will receive it.

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One way to avoid the process of probate is by creating a Revocable Living Trust based estate plan during your life to hold your assets. The assets inside that revocable living trust will not go through probate. For those estates in New York that do exceed the small estate threshold, and for those estates that have a will but no living trust or no will, probate is required before the estate is officially transferred to the beneficiaries or the heir, something which will slow things down considerably. The typical process for probate in New York is as follows:

The will is filed in a surrogate’s court in a county in which the decedent lived.

  • The will is filed promptly after the death.
  • A petition for probate is filed.
  • Court issues letters testamentary to the personal representative or executor.
  • Creditors have a statutory time period in which to file a claim.
  • The personal representative has to file an inventory of the estate’s assets within no more than six months after being appointed.
  • The court issues an official order that distributes the estate’s property to the beneficiaries.
  • The executor receives statutory fees for their services based on the estate size.

Some of the issues that can be handled by a knowledgeable New York estate planning attorney with regard to probate, or setting up your estate to avoid probate, include:

  • Trust administration
  • Estate administration
  • Accounting
  • Tax filings
  • Probating wills
  • Ancillary proceedings
  • Accounting for the estate
  • Unknown heirs
  • Determining and collecting assets

A knowledgeable New York probate lawyer can assist you with this process and advise you about the steps that you must take as a newly appointed administrator. The estate lawyer will likely provide a broad range of services when representing the administrator or executor of an estate in New York, including assisting with the sale of real estate owned by the deceased, drafting and filing all petitions, evaluating the date of death value, finding and securing assets of the deceased, tax elections and filings, collecting any life insurance proceeds of the deceased, defending against any creditor claims in the estate, assisting with the sale of personal property and ensuring that all interested parties are included in probate papers, among more.

Litigation services may also be required for kinship hearings, contested wills, contested accountings, contested administration, relief against a fiduciary and spousal elective share disputes. Consulting with a knowledgeable New York probate attorney immediately is strongly recommended.

Common Questions about Probate

Legacy planning involves thinking about not only what you intend to leave behind after you pass away but also the values you want to instill in your beneficiaries through their inheritance and taking steps to ensure that your estate plan will accomplish these goals. You need to think about the composition of your assets, what you can do to protect those assets, how best to leave those assets to your loved ones so your goals and values are carried out, and how to ensure that your property is used for the purposes you intend after you pass away.

Probate is the process through which a deceased person’s assets are typically transferred, however, it is not required in every situation. Generating a comprehensive revocable living trust based estate plan can help your loved ones be spared the time, expenses and frustration of probate.

While a revocable living trust can be a powerful tool for avoiding probate, you need more than just words on a piece of paper to avoid probate. There are asset transfers and other steps that need to be taken after your trust has been signed so that it’s worth the paper it’s written on. For that reason, you’ll want to schedule a meeting directly with a NY probate lawyer to walk through your options and ensure that you have insight from an attorney you can trust.

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