Probate Attorney in New York City
Handling All Your Probate & Estate Administration Needs
Probate is the process by which the courts determine that a will is valid and is approved for execution. In New York State, it is the surrogate court that decides on the validity of a will. The executor named in the will initiates and oversees the probate process and may wish to hire an attorney to act on their behalf, but they can also manage the process themselves if they are confident in doing so successfully. Every county has its own surrogate court, and your executor will need to start proceedings in the county of your primary residence.
The following are key steps that must be taken to get a will through probate:
- The executor files the will (original) and a certified copy of the decedent's death certificate with the probate petition and other supporting documents. The surrogate court where papers will be filed has to be in the county where the decedent had their primary residence.
- The executor must include the heir ("distributees") in the probate petition. Additionally, distributees must be served a "citation," which is a formal notice that gives the surrogate court jurisdiction to determine the rights of each beneficiary. A citation is also a means of informing heirs as to who is the executor. They can either sign a waiver and consent to the appointment of the executor, or go to court to challenge the appointment.
- A filing fee must be paid, and the amount depends on the size of the estate.
The probate process is—as acknowledged by the New York Court system—not a straightforward one. The paperwork can be complex, so having an attorney to guide you will help ensure a faster, more efficient, and satisfactory outcome. If time is of the essence (e.g. the decedent's family needs cash flow to live on or pay the mortgage of their shared home etc.), you want to ensure that you get all the paperwork right the first time around. A skilled probate attorney in New York City can guide you through every stage of probate, helping you make sound decisions along the way.
Avoiding Probate Court in New York
Probate court proceedings can be long and confusing. In New York, there are ways to avoid probate. If you wish to avoid probate, a living trust may help you. A living trust can be made for any asset that you own, such as real estate, financial accounts, vehicles, and more.
When a living trust is created, you will be able to name someone as a trustee who will carry out your wishes after your death (a “successor trustee”). To set up the living trust, you must transfer ownership of your property to yourself as a “trustee” of the trust. Your property will be taken care of depending on the terms that you create in the trust. When you pass away, the trustee will transfer your property to your beneficiaries as specified in your trust. By setting this up, you can avoid disputes within your family about your estate.
Some assets can simply bypass the probate & administration court system. These assets can be immediately distributed if you’ve already designated beneficiaries (e.g. for life insurance) or share the asset account with your spouse or partner (e.g. bank accounts, stocks, and other investments). Beneficiaries can access and receive funds directly from the companies that hold these assets for you, typically within a relatively short time. Creating beneficiary designations often takes very little paperwork and no more than a few minutes.
While beneficiary designations allow assets like life insurance to avoid probate & administration, they are still part of your estate, which means the death benefits are taxable—unless you’ve made tax arrangements.
If a person dies intestate (i.e. without a will), an adult who is a potential heir (e.g. spouse, partner, parent, etc.) will have to petition the courts to decide what your estate is and how it is to be distributed. New York state law refers to this process as administration. The court will appoint an administrator to oversee this process—the administrator has the same fiduciary responsibilities as the executor and probate, but they were appointed by the court rather than a will.
Administration can take considerably longer than probate because there is no will to guide the court regarding the distribution process. Locating assets, gathering information on them from the relevant financial institutions, and presenting them to the court can take several months.
Note: In New York, neither probate nor administration proceedings are required by law if the decedent's estate is less than $30,000 (personal property only, and excluding real estate). In such cases, a voluntary administration proceeding should be filed by the voluntary administrator with the surrogate court regardless of whether a will exists. Distribution of property will be according to the will if there is one, and if not, then according to law.
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