What is probate?
Probate is a legal process done in a law court after a person dies. This process is done for the purpose of administering the estate left by the deceased, and distributing it amongst beneficiaries according to the wishes of the deceased or the laws of the state. The probate process is often overseen by a probate attorney either hired by the personal representative of the deceased or appointed by the court.
Must probate be done after a person dies?
Probate is only done when a person passed away leaving assets held in their name. The ownership of such assets would have to be transferred legally and officially to someone else, and the court has to oversee this process.
When is probate not necessary?
Assets held in a deceased individual’s name only must be probated before they pass down to heirs or beneficiaries. Whether probate will be necessary is determined by the nature of ownership of the assets. Probate will not be necessary in the following instances:
- When assets are held in a trust. This is because the assets take the name of the trust, and not the Grantor’s.
- When assets contain beneficiary designations; examples are insurance policies, retirement accounts, bank accounts with payable-on-death and transferable-on-death clauses.
- Assets are held jointly (with a spouse or other partner)
- The total worth of the estate does not exceed $30,000 (in New York). In such a case, the estate passes through a simple legal process known as small estate administration.
Where is probate done?
Probate must be done in a Surrogate’s Court in the county where the deceased lived and owned assets. If you live and own property in a New York county 10016, that means probate will be done for you in that same county.
Who is an executor?
An executor is a person named in a will who is charged by the testator to represent him (the testator) when he dies. The executor is responsible for initiating probate and carrying out fiduciary duties on behalf of the deceased and their loved ones.
What if there is no will?
When there is no will, probate will be done in New York so long the estate meets the New York probate requirement i.e. valuing over $30,000 and having assets owned in the name of the deceased alone. Since there is neither will nor executor, the court will itself appoint a personal representative of the deceased, known as an estate administrator. This person has the same functions as the executor. A probate attorney can be appointed. An interested relative of the deceased can also vie for this position. If you so desire, you can hire a probate attorney to help you file the necessary documents to the court for you to be appointed as the estate administrator.
What are the duties of the personal representative?
- Initiating probate
- Appraising the estate
- Paying estate debts, bills, and taxes from the estate purse
- Distribution of assets to beneficiaries and heirs
How will assets be distributed in the absence of a will?
The New York intestate succession law is used in asset distribution when there is no will. Under this law, your spouse receives the first $50,000 of your estate, plus half of the balance of your estate. Your kids receive the rest. Surviving spouses who have been disinherited are also entitled to a piece of the estate according to New York Intestate Succession Law.
Why must I hire a probate attorney from the same county where probate is taking place?
The New York law does not make it mandatory to hire a probate attorney. However, if you as a personal representative of the deceased seek to hire a probate attorney for assistance, it is important you hire one in that same county. This is because the probate attorney must have garnered years of experience working with clients in that county and so must know the best means for making probate as simple and as smooth as can be. Probate is often quite complicated, with cases of estate litigation, disagreements amongst family members, disagreement between family members and the executor, problems with handling debts, etc. If you need help with your probate in a New York county with zip code 10016, then contact the probate attorney 10016. He has immense insight into the probate process of this area, and will ensure you have the best probate experience possible. Contact the probate attorney 10016.