November 22, 2019










What Happens When an Estate Goes to Probate?

Probate is a legal process where a person’s estate is administered and officially closed out. All real property owned by the deceased is assessed by the court and then distributed to interested parties. While it sounds simple, probate is much more than reviewing a person’s assets and handing them over to beneficiaries. The process can take several months – and sometimes longer when complications arise.

When Is Probate Required for New York Estates?

Every state has rules in place for when and why an estate goes to probate. Estates without a will and those with only a Last Will and Testament typically go through probate. Probate court is necessary to pay all final debts, distribute assets to beneficiaries, and make sure a loved one’s wishes are carried out.

What Are the Steps of Probate and What Happens to the Assets?

Probate is complicated, and it involves multiple stages. Also, there are strict deadlines in the probate process, and missing just one can delay a case even further.

Authentication of the Last Will and Testament

If a will was created, then state law requires that the party in possession of that will submit it to the probate court as quickly as possible following the death. Typically, the will is submitted with an application to open the probate process, and a certified copy of the death certificate must be submitted with the documents, too.

The judge will review and decide if the will is valid, which requires a single court hearing. The notice of that hearing must be given to all named beneficiaries in the will and any heirs. The hearing also allows for family members to express concerns over the will’s validity and object to anything in the will. Also, it enables family members to look for more current versions of a will and ensure that the probate court is only using the most recently drafted version.

During this hearing, if the judge decides the will is valid, they will appoint an executor. The family members can object to the appointment at the hearing, but must provide valid reasoning for their objection.

If the will does not have any self-proving affidavits attached, then the judge may require witness testimony or a sworn statement from witnesses about the will’s validity, such as two adults who witnessed the deceased signed the will.

Appointing the Executor

The judge appoints the executor named in the will. If none are named or the one named is no longer available, then the court will pick a different administrator for the role. Usually, the court will appoint next of kin if no one is named or the previously named executor cannot fulfil their role. No one is obligated to serve. Therefore, if the court selects someone but they decline, the court must choose another suitable executor.

Once appointed, the executor receives their “letters of testamentary,” which give them permission to access assets and make transactions on behalf of the estate.

Locating Assets for the Estate

The executor must then find all assets and take them into possession to protect them during the process. Sometimes it takes time, especially if the deceased does not list all assets in their will correctly.

They must research assets, policies, tax returns, and other documentation to find all associated assets.

Then, the executor must make sure property taxes are paid, insurance policies kept current, and homes paid for until probate completes.

Determining Asset Values

Once all assets are accounted for, the executor then does a date of death value. This determines the value of the assets at the time of the death and is often done through appraisals or account statements. The executor then submits their written report with all assets and their value to the court.

Identifying and Informing Creditors of the Death

Next, the executor must locate and notify all creditors of the death, and they are also required to publish a death notification in the local newspaper. Creditors only have so long to make their claims against the estate before they are cut off.

Once creditors are found, the executor must then pay all debts using assets and funds from the estate – this includes homes, medical bills, and any outstanding payments owed.

Taxes

The executor will prepare and file the final tax return for the deceased’s estate and pay any taxes due at the time they file. Some assets might require liquidation to pay for these costs.

Distributing Assets to Beneficiaries

Once all creditors are paid, the executor then distributes the remaining assets to beneficiaries by the requests in the will. Usually, the executor must have the court’s approval before they start distribution.

While distributing assets, the executor must keep a running transaction log so that all beneficiaries can review it.

Would You Prefer to Avoid Probate?

As you can see, the process of probate requires numerous steps, and each of these takes time. On average, cases take six months to a year to finish probate – which means your loved ones may wait as long as 12 months to receive their inheritance.

Likewise, your estate’s information becomes public record.

If you prefer to keep your family’s inheritances private and expedite the process, you can avoid probate with a trust. A trust allows you to move all assets under the trust’s ownership, and upon your death, your trust’s assets are distributed based on guidelines you have provided in the trust documents. With a trust, your family does not endure the costs or hassles of probate court and you still control who receives what from your assets.

To explore whether a trust is the right option for you or to get assistance with probate, contact a local attorney with years of experience in estate planning like Andrew M. Lamkin. Schedule a free consultation today with the Law Office of Andrew M. Lamkin, P.C., at 516-605-0625 or request more information online.