"Probate" comes from a Latin word meaning "to prove." In other words, probate is the process of proving that a person's last will and testament is both genuine and valid. This process takes the form of a court proceeding. How long probate takes, and how complicated it is, depends upon a variety of factors. If no complex issues are involved and nobody challenges anything, probate can be very fast - finishing in a month or so.
What happens during probate?
During probate, one submits the will, along with a variety of other documents. These documents identify the deceased person's property and the value of that property. If real estate is involved, or if there is an ongoing business, it will be necessary to have an appraisal.
Who starts the probate process?
Probate is usually started by the person (or persons) named as executor of the estate. From a pragmatic point of view, this means it tends to be started by the attorney hired by the executor to represent the estate.
Does the executor pay for probate-related expenses?
The estate will ultimately be responsible for the costs (including attorney fees) of the probate process. Even if the executor pays an attorney to start the process, the executor may ultimately repay himself or herself from the assets of the estate.
If there is no will, does probate still occur?
No. Probate refers to proving the genuineness and validity of the will. If there is no will, then the person is said to have died "intestate." In those instances, the distribution of the person's assets will be done in accordance with a formula embodied in state law. Where a person dies intestate, the process is not probate, but, rather "estate administration." That process is usually initiated by a close family member.
What if someone challenges the probate of the will?
That is known as a contested estate proceeding. In that event, it is the job of the executor (and his or her attorney) to defend the will during court proceedings.
What does the executor do after the will has been probated?
The executor is responsible for carrying out the wishes of the deceased person. This includes paying those who are named in the will, liquidating property, and paying debts and taxes.
What if there is only a small estate?
New York has a simplified process for small estates. It is much less time-intensive and considerably less expensive than probating a will where the assets are significant.
Does all property go through probate?
Assets that are held jointly with right of survivorship and those for which there is a named beneficiary are distributed outside of probate.
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