Probate in New York like in every other state is a legal process which the court uses to ascertain and verify the validity of a will. A will which is not probated cannot be used. Until probate is done, a will remains dormant. The probate process could be a really tasking one especially when it has to do with persons who are new to the whole process. Though very tasking and demanding, it is also very important. The probate process can last for a pretty long duration of time. At times it can take several months at other times it could take years to be completed.
The probate process is initiated by the executor to the estate. The executor to the estate is named in the will by the testator. He could be a relative of the testator, a spouse, sibling, parent, etc.
- He begins the probate process by filing a request of probate to the probate court
- He proceeds to enlist the probate assets of the deceased person.
- Next he contacts and informs the heirs and beneficiaries of the estate of the commencement of probate
- He settles creditors of the estate with funds from the estate.
- He settles estate taxes if the estate is subject to them
- He ensures the proper distribution of the estate among the heirs and beneficiaries of the estate according to the instructions of the testator in his will.
Why avoid probate?
- During the process of probate, the assets of the deceased cannot be accessed by his loved ones, heirs or beneficiaries. This is a very big downside to the process of probate as funds and properties are tied down. It is worst if the livelihood of the decedents of the deceased person depends solely on their share of the estate for survival. During a pressing need they could only gain access to the estate by filling a request to the court.
- The cost of probating a will could be alarming especially when issues arise which might lead to a frequent appearance in court. Appearing in court means you will be represented by an attorney. An attorney will not represent you for free; you will have to pay for every appearance in court. This is enough reason why some persons do all they can to avoid probate.
How to avoid probate in New York
In New York, there are several ways one can avoid probate process and still remain within the shores of the law.
- Transfer-on-Death: in New York you can register a TOD for an asset. At your death, the asset will be transferred directly to your named beneficiary without going through probate thereby saving time and cost.
- Joint ownership: this method of avoiding probate is common among couples. If a spouse dies his/her assets are automatically transferred to the surviving partner.
- Living trust: it is possible in New York to make a living trust to avoid probate for any property at all; it could be real estate, bank accounts, vehicles, etc.
- Payable-on-Death: You can decide to avoid probate for the money in your account by adding a “payable-on-death” (POD) designation to bank accounts. The good thing about this method of avoiding probate in New York is that you are still in total control of your account. At your death, the beneficiary can claim ownership to the money and can access the money directly from the bank without probate court proceedings.
Question: what are the possible issues that could arise during the probate process?
Answer: the issue of contest could arise, this is when a beneficiary is not satisfied with the way an estate is shared and he has reasons to believe that he was cheated out of inheritance. In this case, he reserves the right to contest the will in the probate court.
Question: what happens if there is no will to probate?
Answer: it is said that a person “died intestate” when they die not having a will. The court will decide how their estate will be shared among their beneficiaries based on the laws of the state.
Assistance of a probate lawyer
Avoiding the probate process without going out of the bounds of the law could be tricky for the uninitiated. This is why the assistance of a probate attorney is highly recommended by experts. Probate attorneys are the ones who will guard you and also represent your interest in the probate court. Our probate attorneys near you are always available round the clock for consult and hire. Put a call across to them today and save yourself extra stress.