Losing a loved one is never easy, and for many families, the legal responsibilities that follow can quickly become overwhelming. One of the first things people learn is that they may have to go through the probate process before certain assets can be distributed to beneficiaries or heirs. Fortunately, while probate can seem intimidating at first, with the right attorney in your corner and a bit of background knowledge on the subject, it doesn’t have to be a burden on your loved ones.
New York Probate Process FAQ
Q: What is probate?
A: Probate is the process through which a deceased person’s Will is validated by the Surrogate’s Court. Once the Will is admitted to probate, the executor named in the Will is generally authorized to begin administering the estate, which includes gathering assets, paying debts, addressing taxes, and eventually distributing property to the appropriate beneficiaries named in the Will.
Q: Does every estate have to go through probate?
A: No. In some cases, certain assets pass directly to beneficiaries without becoming part of the probate estate. For example, jointly owned property with rights of survivorship, life insurance policies with named beneficiaries, “payable on death” or “TOD” accounts, and certain retirement accounts may pass outside of probate. Whether probate is required depends upon the type of assets the deceased person owned and how those assets were titled.
Q: How does the probate process begin?
A: Generally speaking, probate begins when the executor files the original Will, along with an original death certificate, a probate petition, and waivers from the deceased person’s next of kin in the Surrogate’s Court located in the county where the deceased person lived. The court will review the filing and, assuming everything is in order, appoint the executor to act on behalf of the estate by issuing what are known as Letters Testamentary.
Q: What does an executor do during probate?
A: An executor has several important responsibilities throughout the probate process. Some of the primary responsibilities include:
- Identifying and collecting estate assets.
- Notifying beneficiaries and other interested parties.
- Paying off debts.
- Filing tax returns.
- Distributing specific items of property as directed in the Will.
- Distributing the net estate assets to beneficiaries.
Simply put, the executor is responsible for ensuring the estate is administered properly from beginning to end.
Q: How long does probate usually take?
A: While some relatively simple estates may be completed within seven to nine months, others may take a year or longer to resolve. Various factors come into play here, including the size of the estate, whether creditors file claims, whether property must be sold, and whether disputes arise. Under New York law, once a Will is admitted to probate, the estate must remain open at least seven months in which time period the decedent’s creditors may submit a claim for payment to the estate.
Q: Can probate be delayed?
A: Yes. Unfortunately, probate does not always move as quickly as one would hope. Delays may occur if there are disagreements regarding the validity of the Will, missing estate documents, difficulty locating heirs or beneficiaries, creditor claims, or complex assets that require valuation before they can be distributed.
Q: What if someone contests the Will?
A: In some situations, an interested party (termed a “distributee” in New York law) may challenge the validity of a Will. For example, a distributee who is not named in the Will may claim that the deceased lacked the mental capacity to sign the Will, was subjected to undue influence, or failed to satisfy New York’s legal requirements for executing a valid Will. If a Will contest is filed, the probate process may become significantly more complicated and take considerably longer to resolve.
Q: Do all debts have to be paid before beneficiaries receive their inheritance?
A: Generally, yes. Before assets are distributed, the executor will typically identify valid debts, taxes, administrative expenses, and other obligations that must be satisfied. Only after these obligations have been addressed can the remaining estate assets be distributed to beneficiaries according to the terms of the probated Will.
Q: Can probate be avoided?
A: Fortunately, in many cases, proper estate planning can reduce – or even eliminate – the need for probate for certain assets. Revocable living trusts, beneficiary designations on financial accounts, joint ownership arrangements, and other estate planning tools may allow property to pass directly to loved ones without going through the probate process. The best available strategy will depend upon each family’s individual circumstances.
If you have questions, or you’re currently facing the probate process, and would like to speak with a seasoned Rochester estate lawyer about your circumstances, please contact Lacy Katzen LLP for an initial consultation today.
