Probate

In New York, there are two procedures that can take place after a person’s death: probate or an administration proceeding. A probate is a petition that is submitted to a court when a decedent leaves a last will and testament. Once a judge authenticates the will in question, they accord legal authority to the will’s executor to take over the distribution of the decedent’s estate as instructed in the will. In cases where a decedent dies intestate (without a will) an administration proceeding will take place to designate a court appointed administrator who will arrange the decedent’s assets in accordance with New York state law.

There are several common misconceptions about probate. One of the most prevalent of these is that probate is not required if a decedent leaves a last will and testament. In reality, probate is specifically designed to verify a person’s will and to make sure their stated wishes are carried out. Another common error people make is thinking it’s not necessary to hire an attorney for probate proceedings. While having a probate attorney is not required by the courts, probate can quickly become a highly complex matter that is best left to a professional who can effectively sort through any legal issues that arise. One final inaccurate conception that people have about probate is that their particular case will not take long. Many estimate that probate proceedings will be completed in a few month’s time. In New York, the average probate case takes about a year to close.

In New York, a will contest takes place in New York’s Surrogate Court, and only certain individuals have the legal right to contest a will. These include the decedent’s next of kin and distributes, also known as “heirs at law.” In addition, these two groups must be able to prove that they have legal grounds for contesting the will. In the state of New York, grounds for contesting a will include undue execution, revocation, incapacitation, fraud, and undue influence. It should also be noted that a will contest can become a costly and prolonged legal battle. A qualified probate attorney can help determine whether contesting a will is appropriate.

Probate can be a frustrating, lengthy, and costly process, but there are ways to avoid putting family members and loved ones through this procedure. One of the simplest ways to bypass probate is to place funds and assets into a trust. A trust would allow for assets to pass directly to beneficiaries through its appointed trustee. An attorney can help determine what type of trust is the best fit for an individual’s needs. Another option is a joint ownership in which the surviving owner of a property automatically inherits that property. Because ownership is directly transferred over, there is no need for the property to go through probate. Payable or transfer on death designations for certain accounts is another route that can be used to avoid probate. Essentially, an individual can appoint a beneficiary to receive funds or securities upon the account owner’s death.

While in theory, probate is designed to facilitate the transfer of a decedent’s assets, there are several problems that can arise during probate proceedings. One of the more common challenges that can come up in probate is an having an executor step down from their role. An executor carries a great responsibility. They have to protect the decedent’s assets, manage their outstanding accounts and debts, and various other tasks. If an individual chooses not to perform their obligation as an executor, a court will designate another person to complete the administration of the decedent’s will. Following this, another issue that can arise is when an executor fails or is suspected of failing in their duty to properly manage and administer a decedent’s estate. This can result in an even lengthier probate as the executor must then be held accountable for their breach of fiduciary duty. One final challenge that can come up in probate proceedings is when the will itself is called into question. Heirs or beneficiaries may dispute the validity of the will or there may be multiple versions of a will. Most of the time, any one of these challenges can be resolved, but they do add to the costs and length of the probate process.