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May 7, 2021


What Happens During a Probate Process? Steps and Guide

Probate is the process of distributing your assets after you die. Depending on the details of the estate, the probate process will be relatively complex or relatively simple. In many cases, especially with large estates, the process is far too complex to manage without the assistance of an experienced probate legal practitioner. Following is an overview of the basic steps in a probate process in the state of New York.

Step 1: Opening Probate

Once a person dies, any interested party can submit their death certificate and their will to the Surrogate’s Court with jurisdiction over the deceased person’s county of residence. If the will name an executor, the named executor should submit these documents to the Surrogate’s Court.

If (i) there is a will and (ii) the estate is worth less than $30,000, the court will “administer” it, rather than probate it. If there is no will or if the estate is worth $30,000 or more, the court will formally open probate.

Step 2: Initial Actions by the Court

Once the court opens probate, it will take certain actions immediately.

First, it will provide the estate executor with “letters testamentary,” which are legal documents that grant the executor the right to access the deceased person’s assets (such as bank accounts) for the purpose of completing the probate process. Please note that the executor is sometimes referred to as the personal representative or the administrator of the estate.

The court might release emergency funds to the deceased person’s dependents out of estate assets if they need them. Since probate could last for weeks, months, or years, dependents might need something to survive on in the meantime.

The court also might appoint a guardian for minor children, if any minor children survive the deceased person. A guardian can be named in a will. Ultimately, however, the court will base its decision regarding the identity of the guardian on the “best interests of the child” standard.

Step 3: Administration of the Estate

The estate executor will administer the estate under the supervision of the Surrogate’s Court.

In a nutshell, an executor’s responsibilities are to collect estate assets, pay estate liabilities and comply with the estate’s legal obligations. In particular, the executor should take the following actions.

  • Collect all estate-related financial and legal documents. The executor should definitely inspect the decedent’s computer records. This could be tricky if the person did not reveal their computer passwords to anyone before they died.
  • Inventory the estate’s assets and liabilities, both tangible and intangible. The executor should create a written record of these, which should be regularly updated as liabilities are retired and assets are exhausted. The court will probably demand to see these records at some point.
  • Set up an estate bank account. It is not appropriate for the executor to set up an account in their name alone—the account should be opened in the name of “Estate of [Jane Doe].” If the bank account was a joint bank account or if it included a “payable on death” provision with a named beneficiary, funds from this bank account are not part of the probate estate. The executor must turn these funds over to the named beneficiary.
  • Use the New York State Department of Financial Services to discover any life insurance policies. Payoffs from life insurance policies go to named beneficiaries; they are not part of the probate estate. The executor should notify the insurance companies of the death so that they can handle payouts.
  • Notify the Social Security Administration, the Workers’ Compensation Board, and other relevant government agencies of the death so that they can pay out any appropriate benefits to survivors.
  • Open additional probate proceedings in another county, state, or country, if the deceased person owned any real estate outside their county of residence. A local lawyer might be required.
  • Liquidate the deceased person’s interest in any business that they were involved in at the time of their death.
  • Complete and file an estate tax return, as well as the person’s final tax return.
  • Collect all bills that debtors owe to the estate.
  • Pay all the estate’s liabilities. This might require selling off some estate assets. The executor might have to sell real estate, for example, to pay the estate’s tax debts.
  • Distribute the estate’s remaining assets in the manner that the court determines. Normally, this means distributing the remainder of the estate’s assets to the beneficiaries that the deceased person named in their will.
  • Ask the court to close the probate and release the executor from their duties.

Keep in mind that the foregoing is only a general description. Since no two estates are exactly alike, no two probate processes are going to be exactly alike.

Special Case #1: If There is No Valid Will

If you did not leave a will when you died or if your will is found invalid, your probate estate will be classified as “intestate.” If your estate is intestate, your probate assets will pass as specified under New York’s intestate succession law. Under this law, your assets will pass to your relatives, with your closest relatives receiving first priority. Your spouse (if you have one) will receive assets first.

Special Case #2: If You Placed All Your Assets into a Living Trust

If you placed all your assets into a living trust, you have no probate assets. Without probate assets, there is nothing to probate and no probate proceedings will take place. Similarly, if a living trust holds all but less than $30,000 of your assets, your assets will be considered a small estate and the court will administer (not probate) them in a separate proceeding.

Contact Andrew M. Lamkin Today

You do not always need a lawyer for probate proceedings, but you usually do. If the estate in question is of reasonable size, and if you are the executor, you will probably benefit from retaining a lawyer to a degree that far exceeds the necessary legal fees. Please contact the Law Office of Andrew M. Lamkin, P.C. online or by calling 516-605-0625 to learn more about the probate process.