02/22/2018










10 Things to Know about Probate Court in New York

probate courtWhen a loved one dies leaving a will, you must go through the legal process known as probate. Probate is only required in the state of New York when your loved one’s assets total more than $30,000 in value.

If the assets total over $30,000, then you will go through the stages of probate, and eventually, the estate will be distributed in accordance with the will. While the process sounds straightforward, there is plenty to know about probate court. Also, if you have not hired an attorney to help you probate the estate, it is in your best interest to do so. An attorney can help navigate through this complicated process, advise you of your rights and ensure you do not have unnecessary delays.

10 Facts to Know about the Probate Process in Plainview, New York

Most people going through probate will be first-timers. Therefore, you have plenty of questions that you want to be answered and you may have numerous steps to go through before everything is completed and you can move forward.

Here are just a few facts to know while you wait to meet with a probate attorney.

Fact 1: Probate is Not Free

Probate does cost money, but the cost associated with your proceeding varies depending on the complexity of the case and the value of the estate itself. Your filing fee with the Surrogate Court is based solely on value. For example, if your loved one’s property ranges from $10,000 to $20,000 then you would pay only $75. If their estate is valued at $500,000 at over, then you would have a $1,250 fee as of 2017.

Legal fees are based solely on the attorney you hire. There are no set costs in the state of New York; therefore, you can work out the costs with your attorney. Most attorneys offer three types of charges for probate:

  • Flat rate
  • Hourly
  • Percentage

The more complex the case, the higher the price will be. If you have a relatively simple probate case, your attorney is more likely to charge a flat fee.

Fact 2: You Need a Copy of the Death Certificate to File

You must have a death certificate to file your loved ones will with the state’s Surrogate Court. To get this, you can get a certified copy from the Office of Vital Records – if your loved one died in New York City. If the death was outside of the city, but still within the state, you can request one from the New York State Department of Health. For deaths outside of the city, you must contact that state’s vital records office and request a copy.

Fact 3: Only the Executor Can File for Probate

To get the process started, the executor must take the original will and a certified copy of the death certificate, then file a probate petition along with other documents to the Surrogate’s Court. The probate court the executor files with must be in the county where the deceased’s primary residence was located.

Some areas accept filings over the web through the NYSCEF portal (New York State Courts Electronic Filing System).

Fact 4: You Don’t Need an Attorney, but Should Hire One

Realize that you are not required to hire an attorney. If you feel confident doing probate yourself, the courts will allow you to do so. However, you may find it easier to hire an attorney to handle probate matters, because often complications arise during probate and you need an advocate to find interested parties, handle a will contest, and complete the paperwork.

Fact 5: Executors Must Notify Immediate Family of the Death

Typically, the executor is required to notify all immediate family members of the death and probate, even if they are not named in the will. A formal notice of the probate proceeding must be given to anyone named in the will and to all heirs. Heirs at law are the deceased’s surviving spouse, children, and grandchildren, and must receive a notification.

Fact 6: Notice to Creditors

Before an estate can go through probate, the courts require that the executor search for all files and find any outstanding loans or unpaid obligations for the deceased. Even if there are no creditors, the executor is required to file a Notice to Creditors in the local newspaper, then allow adequate time for creditors to apply and make claims against the estate.

Fact 7: Not all Property Goes through Probate

Many are surprised to find out that not all property goes through probate. Any property that is titled in a revocable living trust will skip over probate entirely. Also, accounts with beneficiary designations and any real estate subject to a transfer-on-death can skip probate. Lastly, a property that is owned through joint tenancy passes automatically to the other spouse without probate.

Fact 8: Probate is Necessary, but Can be Avoided

There are ways to avoid probate entirely, especially if your loved one has created a trust and transferred all assets into that trust.

Regardless, the process of probate is there to ensure that all property and assets are transferred to the correct beneficiaries. While it might seem like a hassle, it is the state’s way of ensuring that the deceased’s final wishes are carried out and that no beneficiary loses their inheritance.

Fact 9: Probate Can Take Longer than Expected

While the Surrogate’s Court of New York estimates probate to last a few weeks, they are not considering how some estates are more complicated than others. In fact, most estates will find that probate takes several months even to begin and a few more months to complete itself, even without complications. When there are contests and other disputes, the process could easily take over one year to complete – if not longer.

Fact 10: Probate is Public Record

Family information is not private when it comes to probate. Instead, personal information, including identities of beneficiaries and the executor is a matter of public record. Also, the liabilities and assets of the estate are published in public records and accessible by those who request them from the clerk’s office.

Speak with an Attorney about Your Probate Process

If you are the executor of an estate or you want to help your loved ones avoid the hassles of probate, speak with an estate planning attorney today. The Law Offices of Andrew M. Lamkin, P.C. can help you with your estate planning needs and when you need an attorney to help you through probate.

To explore your options, speak with an attorney by calling 516-605-0625.  You may also request a free, no-obligation consultation by messaging our team online.




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