07/23/2018










How the New York Probate Process Works

Long Island Probate Lawyer - Law Office of Andrew M. Lamkin, P.C.It is very likely that at some point in your life you will be involved in the probate process as either an executor, administrator, beneficiary or heir.

Understanding how New York’s probate process works will be useful when it is time for you to create your own estate plan.

What is Probate?

Probate is the legal process that takes place after a person dies to prove their Will and to dispose of their estate.

Probate can take a long time and cost a lot of money for the family of the deceased, therefore, individuals often take measures to enable their estates to avoid probate and save their families time and money.

Why is Probate Necessary?

Big or small, almost everyone has an estate and leaves behind some assets when they die.

Probate laws ensure the following:

  1. Assets will be transferred to the right individual(s) after they die.
  2. Creditors will be paid off
  3. The decedent’s last Will and Testament is valid

Testate or Intestate

If the decedent left a valid Will behind, the estate is considered testate.

If no valid Will was created before the decedent’s death, the estate is intestate.

For testate estates, the decedent’s Will determines how the assets are to be distributed.

If the estate is intestate, distribution of the estate will be determined by New York’s Intestate Succession Laws.

How Probate Is Started

After the decedent’s death, his or her family members will look to see if there was a last Will and Testament left behind. If they find one, the person named as the executor will file a petition to open probate.

If no Will is found, a family member will usually file a petition to open probate and request to be appointed an administrator of the decedent’s estate.

The petition to open probate must be filed in the surrogate court in the county in which the decedent was a resident at the time of his or her death.

Executor vs. Administrator

The duties of the executor or administrator, both of whom must be officially appointed by the court, are exactly the same. Probate involves some complex legal issues, so an attorney is usually hired also to assist the executor/administrator in performing the following duties.

With regards to estate assets, theses duties include:

  • Locating, securing and taking inventory of all assets
  • Having the assets appraised
  • Filing an inventory of assets with the court

With regards to claims against the estate from creditors, the executor/administrator’s duties involve:

  • Determining which creditors have a claim against the estate
  • Notifying all creditors of the probate
  • Paying the creditors from the estate

Will Contest
The executor/administrator also has a duty to defend the decedent’s Will in court.

Sometimes someone challenges the decedent’s Will, in what is known as Will contest.

This can only be done on the basis of something like fraud, or incapacity of the decedent at the time the Will was created, not simply because they are unhappy with their gift or inheritance.

If, however, the Will contest is successful and the decedent’s Will is invalidated, the court will look for a previous valid Will with which to probate the estate. If no previous valid Will can be found, the estate will be probated as intestate and in accordance with state intestate succession laws.

Beneficiary or Heir
Once all estate property has been accounted for, all creditors have been paid and all contests have been dealt with, the executor or administrator must prepare and pay any taxes due on the estate.

After that, all remaining assets must be transferred to the rightful beneficiaries or heirs; the only difference between the two being that beneficiaries are named in the Will, while heirs are decided by the court in accordance with state intestate succession laws.

Probate for Small Estates

The probate process can take months or even years and can cost a significant amount of money, so for estates with assets under $30,000 and/or where the decedent owned no real property, or jointly owned real property with someone else for which there was no plan to sell, there is the option of filing a “small estate affidavit” to avoid the formal probate process.

Contact a Long Island Probate Lawyer Today

Call 516-605-0625 or contact me online to schedule an appointment with an experienced Long Island, NY Probate Attorney. I am available to meet with you at your home or my office.



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