When a person dies with a will, their estate must usually undergo probate. This is the process by which the will is proven to be valid. As part of this process, the probate court will appoint an executor or personal representative of the decedent’s (the person who has died) estate. This person has the duty of administering the estate and distributing the decedent’s assets as instructed in the will.
Probate is rife with misunderstandings and apprehensions. It is often viewed as time-consuming, costly, and complex, but it does not have to be the obstacle that many families make it out to be. This article explains what you need to know about probate and how you can avoid the common challenges that may arise during it.
The Basics of Probate in New York
While the probate laws of each state vary, in New York, estates that are valued at $50,000 or more at the time of the person’s death have to be probated if there is a will. The process is different for smaller estates and for those individuals who die intestate (meaning, they die without a last will and testament). In addition, not all assets must pass through probate before they are distributed to heirs. The types of property that are usually subject to probate include:
- Homes
- Real property
- Personal property (e.g., vehicles, jewelry, furniture, and other valuables)
- Bank accounts (unless a payable-on-death or POD designation is made)
Conversely, the following items usually do not have to be probated:
- Jointly owned property (property held in joint tenancy or as tenancy by the entirety)
- Bank and other financial accounts with a POD or TOD (transferable-on-death) designation
- Retirement accounts such as 401(k)s and IRAs
- Life insurance policies
- Assets held in trusts
Probate does not occur until the decedent who executed a last will and testament dies. In New York, a special type of court known as the Surrogate’s Court is tasked with probate. This court handles not only the probating of wills but also estate administration (when a person dies intestate), disputed estates, small estates, and much more.
Breaking Down the Probate Process
Understanding probate begins with knowing a few of the major steps that are involved in it. The executor of the estate, also known as the personal representative, will be responsible for:
- Gathering all relevant documents: These include the death certificate, last will and testament, and records pertaining to the decedent’s assets and debts (including any trusts, retirement accounts, life insurance policies, and bank statements).
- Filing the probate petition: The executor must file the petition to probate the will in Surrogate’s Court. The county in which the decedent lived before death is the appropriate venue for this. The petition formally begins probate and will include information about the executor, beneficiaries, witnesses, and the will.
- Notice: Next, the executor must ensure that beneficiaries who are named in the will are informed about probate. An attorney can help provide them with notice.
- Court hearing: The Surrogate’s Court will conduct a hearing in which it will examine the probate petition, determine whether the will is valid under New York law, and, if so, appoint the executor (There is a slightly different process for estates that do not have a will; the Surrogate appoints an estate administrator in these cases).
- Letters testamentary: The court issues letters testamentary, which give the executor authority to manage the estate and gain access to assets like bank accounts. Unless waived by the will, the executor must also sign a bond. This helps ensure they carefully execute their fiduciary duties in overseeing the estate and distributing its assets.
- Probate inventory: The executor is responsible for collecting the decedent’s assets, itemizing them, and determining their value. This usually requires an appraisal. The executor must inventory all property, both tangible and intangible, including homes, real property, vehicles, bank accounts, furniture, personal items, and debts.
- Paying debts and taxes: Creditors have seven months to file claims against the estate. The executor must determine which are valid and which are not. Debts may include outstanding mortgage balances and loans. Estate taxes also have to be paid. If there is not enough money to pay debts and taxes, estate assets may need to be liquidated.
- Filing the accounting: The executor must file an accounting of all financial transactions with the court. This accounting will include assets, debts, income, payment of expenses, and other details.
- Distributing assets and closing the estate: Once all debts and taxes are paid, and the court issues its final accounting, the executor closes the estate by distributing remaining assets according to the will.
Probate Challenges Families Can Face Without Proper Planning
The above steps can make it seem as though probate is fairly straightforward. But the reality can be more complicated. These are some problems that may arise during the process:
- Delays: Potential delays abound at all stages of probate, from filing the initial petition to locating assets to distributing them and closing the estate. Although executors are often compensated from the estate for their work, they still have careers and occupations to tend to. Regardless, patience is necessary because probate can take time.
- Costs and fees: There are court filing fees, attorney’s fees, administrative fees (e.g., to obtain certified copies of documents and publish notice of probate), appraisal fees, and other costs. It’s important both for individuals who are planning their estate and the executors who must later administer it to understand these expenses beforehand.
- Beneficiary disputes: Some estates are probated without major incident; others trigger bitter court battles among beneficiaries. They may dispute the validity of the will, question the decisions of the executor, or disagree about the nature of their inheritance. Confusion over who inherits what is also possible if the will was poorly drafted. While these are certainly obstacles, the good news is that they can be avoided or minimized. This is where having an experienced estate planning attorney will make a difference.
Tips for Ensuring Probate Goes Smoothly
If you have an estate plan, your goal is that probate goes relatively well once you pass away. There are some ways you can accomplish this, including:
- Ensuring your will is well-drafted and up to date: A vague, ambiguous will, or one that does not meet appropriate legal requirements, will cause trouble for your heirs. Make sure you hire an estate planning lawyer to draft your will. But also be sure to update it when you acquire major assets or encounter life changes like divorce or the birth of a new grandchild.
- Considering long-term care and medical costs: Questions about future health care needs and how they will be paid for should be part of your overall estate plan. For example, understanding how many days does Medicare pay for rehab and what expenses you or your family may need to cover out of pocket can help you plan for sufficient savings, long-term care insurance, or trust arrangements that protect both your care and your legacy.
- Keeping your documents organized: One of the last things you want your executor to have to do is to spend precious time and money hunting down information about you and your assets after you die. Keep vital documents such as your birth certificate, Social Security card, bank records, life insurance policies, retirement account statements, deeds, and other documents in one place.
- Informing your family: Discussing your eventual passing with your family is never an easy conversation, but it’s an important one. You should tell your executor that you have chosen them to exercise this duty long before your death. Let this person know how to obtain your important documents when the time comes. Although you don’t have to disclose the contents of your will to your beneficiaries, it's a good idea for them to know where it is. They should also know the identity of both the estate planning attorney who drafted the will and the executor.
These and other steps can avoid surprises and unnecessary expenses while preparing your family for what they should expect with probate. Retaining legal counsel will help with this process as well. Hiring the right attorney can expedite probate and minimize the time and expense needed to close your estate and distribute assets to your heirs. You should also hire an attorney if you are an executor who is currently probating a will.
Taking the Fear Out of Probate
Probate does not have to be as difficult as many individuals and families fear. It is manageable with the right legal assistance by your side. Whether you are planning your estate or you are an executor who is responsible for probating one, the time is now to speak with a knowledgeable New York estate planning lawyer.
