04/25/2018










Exploring the Probate Process of New York

probateProbate is a process that settles an estate under the supervision of the court.

First, a person (usually a spouse or adult child) is appointed in the deceased’s will or by the court to oversee the process and take all necessary steps to close out the estate, pay all debts associated with it, and distribute assets to beneficiaries (if any).

Why Does Probate Exist in Plainview, NY?

Probate prevents fraud after a person’s death. It ensures that family members do not steal assets from other eligible family members and to ensure that the deceased’s will is valid and not forged.

In the state of New York, a will only need to be probated if the deceased has an estate with assets valuing $30,000 or more. Before the will can go into effect, the will is submitted by the Surrogate’s Court, and the court will determine if the will is valid.

What Makes a Will Valid?

For a will to be valid in New York, it must be signed by the deceased in front of two witnesses, and these witnesses must sign the will in front of two non-participating parties. The person making the will must be competent and of sound mind to sign the will. They cannot sign the will under duress or undue influence; otherwise, the will is considered invalid.

If any party feels that the will is invalid, they can present their argument to the court. This is known as a will contest.

How Long Does Probate Take?

Probate can take a few months to a few years. If the will is contested, the probate process becomes longer.

Regardless, family members are urged to wait at least seven months before closing out probate. This is because the state issues a seven-month timeline where creditors can make claims against the estate. Therefore, you cannot close out the estate until all creditors have been satisfied or given a chance to file a claim.

Seven months is the shortest amount of time to probate a will, but some may take up to three years or longer. The length increases if loved ones do not agree, or if the executor of the estate takes too long to close out the will.

Is There a Maximum Timeframe Probate Can Take?

The courts demand that probate finish in a reasonable amount of time, but what is “reasonable” to the court depends on the circumstances of each case. Any time there is a disagreement, this prolongs the process.

If probate is taking too long, a beneficiary can petition the court or file a lawsuit demanding that the estate close out.

Deadlines for Filing a Will and Probating a Will

There is no deadline to file a will for probate in New York, but it should be done as quickly as possible after the death. If the will is not filed for probate in a reasonable amount of time, a beneficiary or creditor will be disadvantaged. Hence, the courts will penalize any holders for depriving an heir or creditor.

Executor Fees

Executors are entitled to fees for their time, known as commissions. Commissions are based on the value of the estate based on a specific schedule.

For example, the first five percent of the first $100,000.

If the executor is a beneficiary of the will, then they are urged to waive their commission so that they can save on income tax.

An Example of a Probate Timeline

  • Months 1 to 3: During this time the will is read, and the personal representative is named. The executor must obtain death certificates, get all consents and waivers in order, and then file a petition with the Surrogate’s Court to start probate.
  • Months 3 to 6: Now the executor starts their job. They will take an inventory of the estate, make a list of creditors owed, open any safe deposit boxes, notify creditors of the death, and consult with an accountant for any estate taxes. The accountant then prepares a final tax return for the estate and files a Federal Estate Tax return using Form 706.
  • Month 6: The official inventory of all assets is filed with the court, then the assets are appraised.
  • Months 7 to 8: The executor now decides what property should be sold, and what assets are distributed to beneficiaries based on the estate plan.
  • Months 8 to 9: All creditor claims were filed no later than the seventh month; and now the executor must satisfy those claims. Any applicable tax bills must also be paid. Then, a final accounting is submitted to the Surrogate’s Court, and the Beneficiary Agreement is made.
  • Months 9 to 11: At this point, assets should be distributed to beneficiaries, then the executor files a petition to be discharged from their role as executor. At this point, the estate is closed out, and probate is completed.

The Benefits of Using a Probate Attorney

As you can see, an executor must take on numerous tasks – some of which require completing legal documents, negotiating with creditors, and defending a will in court if there is a contest.

Having an attorney to help with the probate process is best because that attorney will be able to help you through the complicated legal procedures of probate. Furthermore, if a party contests the will, you need to have an attorney ready to defend the estate and ensure the probate process is not delayed too long.

Hire a New York Probate Attorney

If you have lost a loved one and now are burdened with the task of settling the estate, speak with someone from the Law Office of Andrew M. Lamkin, P.C.

We understand how time-consuming and stressful probate can be. We want to help you through the process and hopefully speed up the settlement so that you do not have to wait years to close out what should take only months.

Schedule a free, no-obligation consultation now at 516-605-0625, or request more information online.



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