A step by step guide to help you decide if your loved one’s estate is required to go through formal probate in New York.
Consider Hiring an Attorney
Most people leave behind assets when they pass away. Probate is the legal process that ultimately leads to transferring those assets to the intended beneficiaries and/or heirs of the estate. If you are in charge of overseeing the probate of an estate, you should consider hiring an attorney to assist you given the complex legal and financial concepts that are frequently involved in the probate process.
Determine If the Estate Is a Testate or Intestate Estate
If the decedent left behind a Last Will and Testament the estate is referred to as a “testate” estate. If the decedent failed to execute a Will prior to his/her death, the estate is known as an “intestate” estate. The primary difference between the two is found in how the estate assets are distributed. In a testate estate, the decedent’s Will determines how the estate’s probate assets are to be distributed and the process for doing so is referred to as probate. If the decedent dies intestate, the New York intestate succession laws dictate how the estate assets are distributed. Moreover, when a decedent did not leave behind a Will, the process of distributing the estate is referred to as “Administration.”
Separate Non-Probate Assets
Not all assets are required to go through probate. Non-probate assets can be distributed to the intended beneficiaries shortly after the decedent’s death. Common examples of non-probate assets include:
• Assets held in a trust
• Certain types of jointly held property if held with “rights of survivorship”
• Life insurance proceeds
• Funds held in an account designated as “Payable on Death (POD)” or “Transfer on Death (TOD)”
• Certain funds held in retirement or pension accounts
Determine If the Estate Requires Formal Probate
Some type of probate is almost always required; however, formal probate may be avoided by small estates that qualify for an alternative to formal probate. Each state determines what constitutes a small estate and what the procedures are for administering a small estate. In the State of New York, for example, an estate that has assets consisting of only personal property valued at less than $30,000 may qualify for a small estate alternative known as “voluntary administration.”
Decide Who Is in Charge of Distributing the Estate Assets
If the decedent left behind a valid Will, the person appointed by the Testator to be the Executor is responsible for probating the estate. In that case, the Executor files the original Will and a certified copy of the death certificate with the probate petition and other supporting documents in the Surrogate's Court in the county where the Decedent had their primary residence. If the decedent died intestate, the closest distributee is responsible for beginning the Administration process which entails filing a copy of the paid funeral bill, a certified copy of the death certificate with the Petition for Letters of Administration and other supporting documents in the Surrogate's Court in the county where the Decedent had their primary residence.
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