The word probate typically refers to the court-supervised process that a person, known as a personal representative, goes through in order to settle the estate of a deceased person. The process ends with distributing the deceased person’s assets according to the instructions of their Will or according to the Intestate Succession Law of New York (when a valid Will is unavailable). Personal representatives are often advised to work with a New York probate attorney to guarantee an efficient and successful probate.
Is probate always necessary?
Probate is only necessary for assets that are owned solely by the deceased — assets which have no named beneficiary to whom they could directly pass. This may include bank accounts, houses and automobiles, jewelries, antiques, etc.
Non-probate assets
Assets in a trust are not probated. Jointly held assets, retirement accounts, and accounts with a named beneficiary are also generally not probated.
Small estate administration
In New York, only estates valuing above $30,000 may be probated. Estates valuing less than this are regarded as “small” and will be disposed by a simpler process known as small estate administration.
Note: There will be no probate process if the whole estate consists of only Non-probate assets.
Your estate plan can avoid or simplify probate
Because of the characteristic complexity and cost of probate, most estate plans are created to either avoid or simplify it. Since the cost of probate increases with the value of the assets being probated, your probate attorney can recommend reducing the value of your estate through gifting, or funding valuable assets into a trust. By so doing, assets will get to your loved ones more quickly. Probate attorneys will always work based on your particular estate goals while keeping your best interests at heart.
The steps involved in probating an estate
Filing the petition
The first step of probate is filing a petition to the probate court in the county where the decedent resided. This is done by the personal representative. He must include the original will and a certified copy of the death certificate and other relevant documents along with the petition.
Valuating the estate
The personal representative then has to collect all assets owned by the deceased and estimate their worth, probably through professional appraisal although this is not always necessary.
Settling debts and taxes
Debts owed by the decedent would have to be paid to the creditors by the personal representative. He also has to prepare tax return forms for the estate, submit, and make appropriate payments. Estates valuing over $5.85 million in New York are subject to federal estate tax.
Distribution of assets
After settling all expenses and taxes, the personal representative then has to distribute the assets to the beneficiaries according to the Will or intestate laws of New York in the absence of a valid Will.
What are the laws regulating probate in zip code 10004 New York
The laws regulating probate in New York are set forth in the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trust Law (EPTL).
Authority to act as a personal representative
After filing the petition to the probate Court, the Last Will will be verified if it meets the New York requirements for writing Wills. If valid, then the executor will be issued documents known as “Letters Testamentary”. This serves to authorize the executor to proceed with probate. If the court appoints an estate administrator, then authorizing documents known as Letters of Administration will be issued to the administrator.
Heirs-at-law
As have been stated, intestacy laws will determine how an estate will be distributed in the absence of a will. The people entitled to inherit the estate by intestacy laws are called the Heirs-at-law. In New York, the Heirs-at-law are typically the spouse and children of the deceased. If there is neither spouse nor child, then the parent(s) of the deceased will receive the estate. In summary, the Heirs-at-law are typically the closest living relatives of the deceased, and have the legal right to “contest” the Will if they feel cheated or have any reason to assume foul play in the Will.
Why you need a probate attorney
You would not always need an attorney when probating an estate especially when such estate is simple. But for a more complex estate resulting in a complex probate, it is helpful to have an attorney working on your side as they would help in resolving whatever complications that may arise. Complications could be in the form or estate litigation though Will contests, executor being accused by family of the deceased, family conflicts, etc. This would consequently increase the time required to complete probate, but a probate attorney will help to mitigate or avoid such complications.
If you are currently embarking on a probate case in New York, kindly contact the probate attorney 10005 NY.
