When a person passes away in New York and left possessions behind, those possessions will have to go into the ownership of another person or persons. The manner in which those possessions will be passed can be specified in the person’s estate plan. Howbeit, the system of passing on a deceased person’s possessions to a new owner is legal and has to be overseen by the court. The process by which the court oversees this system is what is known as Probate. Since it is a legal system, a probate attorney NY is often involved.
Probate
Probate can be defined as the legal process by which the court oversees the distribution of inheritance to inheritors. It is done in a probate court (known as Surrogate’s Court in New York). If a person dies in a county in New York and that person had a Will, the Will must be admitted into the probate court in that county for the Will to be validated. If it is found to be valid, then the decedent’s possessions can be distributed to the beneficiaries according to what the Will says. Probate entails the whole process beginning from when the will is admitted into court to the distribution of the assets. But distribution doesn’t take place until some important activities are carried out.
What activities are carried out during probate?
It is the executor named in the will who is responsible for submitting the will to court. If this is you, then you need to know that you have fiduciary responsibilities to the estate and family of the deceased. Once you have been accepted as the legal personal representative of the deceased, then you must carry out the following sequence of activities:
- Notify all concerned parties that probate has begun. Concerned parties include the family, relatives and creditors of the deceased.
- Identify all the assets left by the deceased and estimate their value.
- Open a checking account with funds from the estate.
- Pay funeral bills, debts, federal and/state estate taxes from the account you opened.
- Keep an accurate accounting record of all your expenditure.
- Submit the accounting record to the court.
- When the accounting record has been accepted by the court, then you can proceed to disburse what’s left of the estate to the inheritors as the will specifies.
What if there is no will?
If there is no will, someone has to file a petition to the probate court to act as the personal representative of the deceased for probate to commence. In this case, the person will be called an estate administrator and not an executor, but the responsibilities remain the same. In the absence of a will, only the spouse and children of the deceased will inherit under NY Intestate Succession Law.
But Probate is not always necessary
In New York, there are cases when probate will not be done. If the person leaves all his assets in a living trust and not a will, then probate will not be done. Also, estates valuing less than $30,000 do not qualify for probate. They will be disposed through a simpler system known as a “small estate administration.” Also, Insurance proceeds, retirement accounts, accounts with POD clause, and jointly held assets will not pass through the probate court, but will go directly to the beneficiary named in the asset documentation.
Should I handle probate alone or do I need an attorney?
If you are an executor or estate administrator, you have to understand that there are a lot of legalities surrounding probating an estate in New York. If the estate is simple and the family is cordial, then you probably can handle probate yourself. But for complex estates and those in which the surviving family members are at each other’s throats, you definitely would need the assistance of a probate attorney because there is a high possibility of estate litigation cases and suits being filed. Such issues complicate probate all the more, and only an experienced probate attorney can help mitigate such issues.
An experienced probate attorney can help you avoid probate mistakes
As an executor, there are tax return forms to fill and creditors to deal with. If you do not have the full legal and technical know-how to deal with either, you may end of making costly mistakes and wasting estate funds. Be aware that for every wrong action you make, you will be held accountable by the family and you can be dragged to court. But a probate attorney helps you to avoid such mistakes. With their legal expertise and experience, they’ll advise and guide you all through the complicated process of probate, ensuring that the process runs as smooth as possible, and that beneficiaries get their inheritance on time.
Contact a probate attorney near you.
