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What is Probate?

Posted by attorney Cheryl Fratello

Probate is a process by which a decedent's Last Will and Testament is presented to a court in order that the court may establish its validity. One of the goals of the probate process is usually the issuance of Letters Testamentary to an executor (most frequently named in the will). Letters Testamentary allow an executor to title the decedent's assets in the name of the beneficiaries, as dictated by the will. When a decedent dies without a will, a similar process called Administration is utilized and the decedent's assets pass as dictated by New York State's intestacy statute. In some situations, probate may not be necessary. In cases where all of a decedent's assets pass "outside" the will, probate is not necessary. Property that is held jointly with rights of survivorship, insurance policies with named beneficiaries, "in trust for" accounts, some retirement benefits and "transfer on death" accounts are examples of assets that pass "outside" of a will. Additionally, if an estate has a gross value of $30,000.00 or less and the decedent passed after January 1, 2009 ($20,000.00 limit for decedent's passing before January 1, 2009), a simplified procedure is available. A probate proceeding is often commenced by the filing of a Petition for Probate in a state court (e.g. New York State Surrogate's Court; each New York County has its own Surrogate's Court.) In most cases, the probate proceeding is brought in the Surrogate's Court in the county of the decedent's domicile at the time of his death. A filing fee is paid to the Surrogate's Court and is based on a sliding scale that can range from $45.00 to $1,250.00 dependent upon the estimated size of the gross estate. As part of the probate proceeding, all interested persons must be notified and given an opportunity to oppose the will prior to its admission to probate. Most frequently, those individuals are beneficiaries of the will and those who would have inherited if there was no will under the laws of intestacy. Among other potential persons to be noticed are interested trustees and guardians of the person and property of the decedent and beneficiaries. To avoid this notice requirement, you may avoid probate by having all assets pass "outside" of the will, as discussed earlier, or by utilizing a living trust, which may require no such notice. Occasionally, unexpected delays occur during the probate proceeding. For example, a contesting of the will itself, an objection to the action(s) of the executor or the identifying of a previously unknown creditor, may slow the probate process and possibly lead to litigation. Once an executor has distributed all of the estate's assets and paid the expenses of the estate, the executor is required to file a document with the Surrogate's Court that evidences that the estate's assets have been delivered to the beneficiaries, the type of assets held by the estate and date of death values of those assets. The executor may also be required to file an accounting and pay estate tax contingent upon the size of the estate. It is important to retain reliable and knowledgeable attorneys in the probate or administration of an estate. New York State has a strict and formal probate process that is best navigated by professionals.

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