August 17, 2019










Probate: What it is and why to avoid it

Probate is the process by which a Last Will & Testament is declared valid. When an individual passes away the named executor of the Will must file a Petition, along with the original Will, with Surrogates Court in the county where the decedent resided. Included with the Petition, the Executor must satisfy certain requirements. One such requirement is to serve notice upon all lawful heirs of the decedent.

The heirs are asked to sign a Waiver of Process and Consent to Probate. By signing this form, the heir is consenting to the appointment of the Petitioning Executor – but is not forfeiting any rights to their inheritance. The lawful heirs are the closest relatives – starting with the spouse, children and grandchildren and if there are not any surviving then parents, siblings and nieces and nephews.

At the conclusion of the proceeding – after the Petition has been filed with the necessary Waiver and Consent forms – the Judge will appoint the Petitioning Executor as Executor. At this time, the Executor can collect the assets of the estate and distribute them according to the terms of the Will. Typically the process is not too difficult. However, there are situations where it may be important.

Disinheriting a child:

During the probate process in New York, a disinherited child will still be asked to sign a waiver and consent form. Because the child is disinherited, it is unlikely they would sign the form. The attorney for the estate will be required to ask the Judge to serve that individual with a Citation. The citation would put the individual on notice that he has the right to appear in Court at a predetermined time. If the individual does not show up, they forfeit their rights to contest the estate. Because of these requirements, the entire process is extended and can last for over 6-12 months. Avoiding probate for New York residents is important if they are disinheriting a child. It will reduce the likelihood that the disinherited child will contest the Will. It will also make life much easier for the other heirs, saving them months of aggravation and thousands of dollars in legal fees.

Property in Multiple States:

Sometimes probate only occurs when the decedent owned property in New York and in another state. In fact, many of my clients own their home in Long Island and a winter home on Florida. When this occurs, the heirs are required to probate the estate in New York and Florida. The entire process will easily last for over 1 year. Further, because two probate proceedings are required, two attorneys would have to be hired, one on New York and the other in Florida. The time and costs associated with two probate proceedings are great reasons to speak with an Estate Planning Attorney in New York to discuss ways to avoid probate.

Second Marriages:

Previously, I mentioned that New York probate proceedings require the inclusion of all lawful heirs. When passing away with a spouse and children, they are all considered lawful heirs. If you are in a second marriage and your will distributes your assets in a way that may upset either your spouse or children from a previous marriage, there is a very good chance that the probate process can be turned into a battleground between the survivors. With proper planning it is possible to avoid probate in these circumstances and make sure that your assets are distributed in accordance with your wishes.

New York probate proceedings are not always difficult. However, in certain situations, it is advisable to seek the advice of counsel and learn how you can make life easier for your heirs. Though it is not a great commentary on our society, unfortunately, money changes people. Most family feuds occur when one family member has passed away and their estate needs to be administered. The probate process in New York is important because it requires all family members to be involved. However, this very requirement also makes the process difficult and expensive. If one of your estate planning goals is to ensure a smooth and inexpensive transition of assets upon your demise, it is advisable to avoid probate – especially in the situations described above.

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Client Case Study: Be Organized, or else

A few months ago, I met with a client who wished to update his Last Will and Testament and learn how to protect his assets against the cost of Long Term Care. He was widowed, had a partner of 10 years and two children from his previous marriage. He was 85 years old. His assets included his primary residence and modest savings, mostly in the form of CD’s.

He wished to leave his assets to his partner and one of his daughters – disinheriting the other daughter. Because of this – and because he wanted to protect his assets – I suggested that he create an Irrevocable Trust. This would help protect his assets in case he had to be placed in a nursing home or require the assistance of a home health aide. More importantly, perhaps, it would allow his estate to avoid the probate process – especially important when disinheriting a child.

Probate is the process of proving the validity of the will and administering the estate. During this process, all children are asked to be involved by consenting to the appointment of the named Executor – including those who are disinherited. Because he wanted to disinherit a child, I thought that the probate process could be difficult for his partner and other daughter.

He decided to take my advise and create a Trust and then transfer his assets to the trust, including the deed to the house. We began the process by drafting and executing the Trust agreement. Unfortunately, he could not find the deed to his house. He took more time to try and locate the deed, but to no avail could not locate it. We eventually found the deed with the assistance of a Title company.

Unfortunately, before we had time to draft and sign the deed, my client passed away. The house, therefore, was not owned by the Trust. Accordingly, the house would pass through the Will, forcing probate. Because the Will states that one of his daughter is not to inherit, we expect there to be a contested proceeding.

It is all too common for individuals not to know exactly where their important documents are located. Whether they be Wills and Trusts, Powers of Attorney and Health Care Proxies, Deeds and Health Insurance information, or a list of bank accounts, it is important that you be organized and know where everything is located so that when the time, comes there are not unnecessary delays that cause unnecessary problems.