Have you recently found out you were named as an executor? Are you looking to probate the estate of your loved one? Or is it that you were named as a beneficiary? Then there is so much you need to know about probate in order to avoid confusion and mistakes. Follow us as we bring you important things to know about probate.
By definition, probate is the court process by which a deceased person’s last will is checked to see if it’s valid or not. But probate doesn’t end with validating a will. If the will is valid, then the content of the will is carried out; i.e. distributing their assets. These two actions are the beginning and ending of the probate process. There is so much that happens between. The entire process is what is referred to as probate.
So we can say in broader terms that probate is the court-supervised process whereby a deceased person’s estate is distributed according to their will or intestacy laws.
Must probate be done when a person dies?
Probate will only be done if it meets some criteria according to the state’s laws. In New York, probate may only be conducted if the decedent’s estate exceeds $30,000; whereas in Florida the estate has to exceed $75,000. Also, the assets going through probate must be held in the decedent’s name alone.
There are certain assets that will not pass through probate. These include:
- Assets held in a trust
- Assets held by joint tenancy or survivorship
- Assets having a designated beneficiary such as retirement accounts and life insurance policy
- Bank accounts with payable-on-death clause.
All assets in this list have beneficiaries already assigned in their deeds, and as such, the assets will pass directly to them immediately the owner dies.
If a person dies and all his assets fall within this list, then it means no asset will be going through probate.
What steps are involved with probate?
The totality of probate involves certain steps. However, it begins by filing the decedent’s will into court. The person responsible to do this is called the executor, and this person is named in the will. In the event the will doesn’t name an executor, the court will appoint one. In this case, he will be called an estate administrator instead of an executor.
- Filing the petition. Probate begins when the executor files the petition to court to commence probate. He must also include the will and death certificate of the deceased.
- A court hearing. When the court has approved the will as valid, they will then issue the executor a document called Letters Testamentary, granting them authority to probate the estate. In the case of an administrator, “Letters of Administration” will be issued instead. The court then fixes a date for a court hearing where all parties concerned with the estate should be present.
- Settling estate debts, taxes, and expenses. The next step is for the executor to take inventory of all assets held in the name of the deceased. He should then open a checking account from which he will pay off estate debts, taxes, funeral expenses, and probate fees.
- Disbursing the estate. After all financial obligations have been settled, the estate will then be distributed among the heirs/beneficiaries.
When a person dies without a will, they are said to have died intestate. In this case, their last wishes are not known and so the probate court will have to decide for them. The court uses the laws of intestacy to determine the beneficiaries, and these laws vary across different states. Typically, the surviving spouse and kids are the heirs-at-law under intestacy. If neither is alive, the estate will go to the next closest kin according to the state law.
Priority of claims
When paying off financial obligations of the estate, there is a certain order that must be followed. In most states, beneficiaries are settled last. If the estate is insufficient to settle all other debts, it means beneficiaries will be receiving nothing.
Probate is lengthy and complicated
Probate normally drags on for months and even more than a year depending on the complexity of the estate. Sometimes, family members disagree over property and drag each other to court. Someone may also challenge the validity of the will, litigate the estate, or file a lawsuit against executor for misconduct. All of these will complicate and delay probate all the more.
Why you need to hire a probate attorney
Dealing with probate with inexperience makes it so much difficult. As the executor, you have so much to figure out and forms to fill, and a little mistake can bring so much tribulation to the estate. Meanwhile, the family may sue you if they do not understand what you’re doing. It is therefore in your best interest that you obtain guidance from a probate attorney.
A probate lawyer will educate you and the family about probate, and assist you in executing your duties. They also help to resolve disputes and avoid lawsuits that delay probate.
Need help probating an estate in New York? We are here for you
If you live in New York and need guidance from a probate attorney near you, kindly contact us today. We are dedicated to giving you a seamless probate that concludes as quickly as possible.