Understanding the probate process
probate process

Understanding the probate process

What is probate?

Probate is a legal process whereby the will of a decreased is validated by the court before its contents are executed. The court, called a probate court, must be in the county where the decedent lived and/or owned estate. In New York, the Surrogate’s Court is in charge of handling probate.

What if there is no will to probate?

If the decedent had no last will, he is declared to have died intestate. In that case, the estate will be “administered,” not “probated.” However, these two words mean virtually the same thing, only in different conditions. One with a will and the other without.

In intestacy, the court decides for the decedent who receives the estate. Typically, the heirs-at-law are the surviving spouse and children. There is a pre-determined proportion by which the estate will be shared according to the State law in question.

If you want to have a say in who receives your property and in what proportion, then you have to act now. Get help from an estate planning attorney near you to create your estate plan.

How long does probate take?

Probate is typically a very lengthy process. With adequate knowledge, most people would want to avoid it altogether. It may take from a few months to years, depending on how complex the estate is. Only after probate is concluded can beneficiaries get their inheritance. So, they may have to wait more than a year as the case may be.

What steps or processes are involved with probate?

  • If there is a will, the executor will file this will to the probate court at the death of the testator. The court will then examine the will to determine if it complies with state laws. If yes, it is admitted and commencement of probate is declared. In the absence of a will or when the will is declared invalid, the court takes it upon itself to appoint an estate administrator. This person will perform exactly the same functions as an executor. Both the executor and administrator are collectively called the personal representative of the deceased.
  • The court will fix a date for hearing. The representative must then notify all parties (family members, relatives, creditors of the deceased, etc.) of the hearing date.
  • In the hearing, the will can be contested by any party who feels cheated out of the will or has any reason to suspect foul play.
  • The executor must take account of all valuables in the estate and valuate the entire estate. From the estate checking account which he will open, he must then settle all outstanding debts of the deceased, estate tax, funeral expenses, etc.
  • After settling all financial obligations of the estate, the executor will then file for permission to distribute the estate. If the court permits him, he then distributes what’s left of the estate to the beneficiaries according to the will. In the absence of one, the state law of intestacy will supersede.

Must every estate go through the probate process?

Not all estate goes through probate. Only assets that are under the name of the deceased only may be probated.

Hence, the following assets will not be probated:

·        Assets held jointly with rights of survivorship

·        Assets held in a trust

·        Assets with designated beneficiaries such as transferrable-on-death accounts, 401k, and life insurance

These assets are known as non-probate assets. Typically, non-probate assets pass outside the will, and hence outside probate. If the entire estate is made up of non-probate assets, then it means the estate will not be probated. Also, states have a threshold amount for considering an estate for probate. In New York, an estate must be above $30,000 to be worthy of probate. Below this amount, a smaller form of administration is done.

Will contests and estate litigation

Will contests are allowed during the probate process. Aggrieved parties may contest the will for various reasons. They may even hire an attorney to advocate their case in court through estate litigation.

Estate litigation is any lawsuit involving an estate or assets of a deceased. One party may sue for the will to be discarded because there is evidence of fraud, signing under duress, etc. One family member may even sue another for selling, using, or handling an asset they have no right over. An executor may also be sued.

Estate litigation can cause probate to drag on longer. Having an experienced estate planning attorney working with the family can help to reduce such tension, resolving disputes before they escalate in court.

Get help from a probate attorney

If you have recently found out that you’re the executor of a loved one’s will, get help from a probate lawyer to ensure a smooth and seamless probate.

A probate in New York? Call us today to speak with a probate lawyer near you NYC.