Probate is the legal process for proving a will valid or invalid, appointing an executor, and distributing estate assets according to the will or state law.
“What is probate?” is a common question when dealing with a loved one’s estate or their assets. While probate can be complex, this guide will help you better understand the concept by detailing the steps involved. These include the effects of a will, the role of an executor, how property is handled, and what can be done to avoid probate.
Probate involves proving a the validity of deceased person’s last will and testament, often in a court of law. The usual process looks like this:
An individual files a petition with the probate court to admit the will to probate and appoint an executor.
Notice of the petition is given to all heirs and beneficiaries.
The executor informs the estate's creditors of probate proceedings.
The executor takes inventory of all estate assets.
The executor settles the decedent's debts and taxes using money from the estate. This person may be permitted to sell estate assets to repay debts and taxes.
The deceased individual's property transfers to beneficiaries.
A will is essential to the probate process, since probate deals with proving the validity of a will. A person who dies without a will is considered to have died “intestate.” When this occurs, a representative is appointed to decide what will happen to their assets.
An executor is the person tasked with carrying out the terms of a will and handling estate affairs. They’re frequently a family member or close friend of the deceased.
Most wills nominate at least one executor, and often name a secondary person in case the primary executor is unable or unwilling to perform the executor's duties. The probate court considers this nomination when officially naming the executor.
An executor has several responsibilities:
Identifying, gathering, and protecting the decedent's assets
Settling the decedent's debts
Distributing any remaining assets according to the will's instructions
These duties may seem overwhelming, but an executor doesn’t have to complete them alone. Many US states actually require the executor to enlist a lawyer's help. Even if this aspect is not a legal requirement in your state, seeking counsel can ensure an executor meets all legal obligations.
Most property will be subject to probate. Typical assets distributed during probate include the following:
However, there are exceptions. According to New York probate attorney Michael S. Haber, "Assets that are held jointly with right of survivorship and those for which there is a named beneficiary are distributed outside of probate." These assets might include property deeded to the decedent and a surviving spouse, or money in a 401(k) account that names the spouse as a beneficiary.
Probate is an expensive and lengthy process that typically takes between 9 months and 2 years, according to Massachusetts estate planning attorney Susana Lannik.
For at least some of this time, the deceased's assets cannot be used by their loved ones. Probate is also a public process which can hinder the privacy of a grieving family. For all these reasons, probate is a process best avoided.
Lannik says the best way to avoid the probate process is "appropriate planning and proper documents." While noting that every case is different, she recommends her clients have the following:
These measures will help individuals avoid probate if they pass away or become incapacitated.
Dealing with probate law can be daunting, but with an experienced probate lawyer's assistance, you can confidently navigate through this process.
Attorney Thomas B. Burton answers a reader question involving estate planning and long term nursing home care where the mother's home was sold to pay for the mother's nursing home care.
Removal of a Fiduciary However, many situations are not as straightforward as the grounds listed in SCPA § 719. While you may be working with a fiduciary that does not act in the manner that you wish, oftentimes, the conduct does not rise to the standard that would warrant their removal. Courts have held that the removal of a fiduciary pursuant to SCPA §719 is equivalent to a judicial nullification of the testator's choice and can only be done when the grounds set forth in the statutes have been clearly established. The Court may remove a fiduciary without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary's in-court conduct causes such facts to be within the court's knowledge or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding. Requirements for Removal Pursuant to SCPA § 711 a person interested may petition the court to remove the fiduciary. Some of the grounds listed in the statute include: that the fiduciary wasted or improvidently managed property; that the fiduciary willfully refused or without good cause neglected to obey any lawful direction of the court; or the fiduciary does not possess the necessary qualifications by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office. Again, while there are many cases where fiduciaries have behaved badly, courts are generally hesitant to remove fiduciaries unless the assets of the estate/trust are put at risk. Not Breaches are Created Equal Even though you may be unhappy with the conduct of a fiduciary, not every breach of duty will result in the removal of the fiduciary. Many breaches can be addressed in an accounting proceeding either through surcharge or denial of commissions. While a fiduciary can be removed if conduct that violates SCPA § 711 or § 719 can be proven, it is often a lengthy and expensive process that involves the exercise of discretion by a court that is hesitant to remove a fiduciary chosen by the testator. Removal Proceeding A proceeding to remove a fiduciary should only be undertaken if it can be proven that the assets of the estate/trust are in danger under the fiduciary’s control. Mere speculation or distrust will not be enough to remove a fiduciary. If you believe that the fiduciary of an estate or trust is not managing the estate or trust properly, you should consult with an attorney experienced in estate administration matters that can review the facts and determine the best course of action.
The Law Office of Inna Fershteyn & Associates has been providing NY’s leading estate planning, Medicaid fraud, and asset protection services for over 20 years. With over 195 five star reviews, you can be confident that you’ll receive the highest quality representation available. 1517 Voorhies Avenue 4th Floor Brooklyn, NY 11235 (718) 333-2394 https://brooklyntrustandwill.com/cont... For more information about our firm: https://BrooklynTrustAndWill.com/ Our practice areas: Medicaid Fraud, HRA fraud, SNAP fraud, Wills and Trusts, Estate Planning, Elder Law, Guardianship, NY Will Probate, Fair Hearings Music from https://filmmusic.io "Touching Story" by Kevin MacLeod (https://incompetech.com) License: CC BY (http://creativecommons.org/licenses/b...)
Having a will is important in estate planning, but it should also be complemented by a trust. A trust will distribute assets automatically to your beneficiaries once you pass and can save time, money, and most importantly, stress from spending additional time going through probate. If you want to ensure your trust is set up correctly, call the Law Office of Inna Fershteyn & Associates for NY’s leading estate planning service. The Law Office of Inna Fershteyn & Associates has been providing many individuals with legal help for over 22 years. With high ratings and over 200 positive reviews and counting, hear first-hand from some of our very own clients as they discuss their experiences at our firm. If you have any questions or want to speak with an attorney today, visit or contact our office at: 1517 Voorhies Avenue 4th Floor Brooklyn, NY 11235 (718) 333-2394 https://brooklyntrustandwill.com/cont... For more information about our firm: https://BrooklynTrustAndWill.com/ Our practice areas include: Medicaid Fraud, HRA fraud, SNAP fraud, Wills and Trusts, Estate Planning, Elder Law, Guardianship, NY Will Probate, Fair Hearings Music from https://filmmusic.io "Easy Lemon" by Kevin MacLeod (https://incompetech.com) License: CC BY (http://creativecommons.org/licenses/b...)
New York Law on Posthumously Conceived Children (“PCC”) According to New York law, a child born after the death of a genetic parent will be deemed a child of that parent if the following conditions are met: 1. The genetic parent, in a written document signed not more than seven (7) years before his or her death, (a) expressly consented to the use of the genetic material for posthumous reproduction and (b) authorized a person to make decisions about the use of the generic material after the genetic person’s death; 2. Within seven months of the issuance of letters, the authorized person must give notice of the existence of the stored genetic material to the personal representative of the genetic parent’s estate; 3. The authorized person must record the writing in the Surrogate’s Court within seven months of the genetic parent’s death; and 4. The genetic child must be in utero within 24 months or born within 33 months of the genetic parent’s death. If these requirements are met, then a PCC will be considered a child of the genetic parent for purposes of gifts to children, issue, descendants and similar classes in instruments executed by the genetic parent or other individuals. In the event of divorce, the authority under the written instrument signed by the genetic parent is automatically revoked. Connecticut Law on Posthumously Conceived Children ("PCC") According to Connecticut statute, a PCC is deemed to have been born during the deceased genetic parent’s lifetime if the two following requirements are met: 1. The decedent, in a writing signed and dated by the decedent and the decedent’s spouse, specifies that genetic material may be used for posthumous conception; and 2. The PCC is in utero within one year of the decedent’s death. The spouse must also give a copy of the signed writing described above to the estate fiduciary with in the later of 30 days of death or appointment of a fiduciary. However, the failure to do so will not prejudice the rights of the PCC.
Client review of Brooklyn's best estate planning lawyer. If you need estate planning done, then come to a professional attorney and receive the best Elder law and asset protection advice. Attorney Inna Fershteyn is NY’s top estate planning and asset protection firm. Inna Fershteyn has over 22 years of practice and has over 195 positive reviews each review addressing amazing client experience received in our law office. If you need an estate planning attorney in NY, contact our office at: 1517 Voorhies Avenue 4th Floor Brooklyn, NY 11235 (718) 333-2394 https://brooklyntrustandwill.com/cont... For more information about our firm: https://BrooklynTrustAndWill.com/ Our practice areas: Medicaid Fraud, HRA fraud, SNAP fraud, Wills and Trusts, Estate Planning, Elder Law, Guardianship, NY Will Probate, Fair Hearings Music from https://filmmusic.io "Perspectives" by Kevin MacLeod (https://incompetech.com) License: CC BY (http://creativecommons.org/licenses/b...)
Get an answer to the question "what is probate?", see how a will affects the probate process, and find out what role the executor plays in it.
Careful estate planning will let you avoid probate. This guide explains the various methods you can use to bypass the cost and hassle associated with probate.