About the author : Christine Andreoli

The probate process involves the authentication of a Will, the review of assets, the payment of outstanding debts and taxes, and the distribution of the remaining assets to the heirs. After an asset-holder dies, the court will appoint a valid Will’s executor to administer the probate process. In the absence of a Will, the court will appoint a state administrator to handle probate. Probate law varies by state, but in New York these are the common steps in the process.

First, an executor is appointed and is normally the person named in the Wll. It is the executor’s responsibility to initiate the probate process in the county where the decedent lived at the time of their death. An executor can be a family member, a financial advisor, or any person the testator deemed capable of administering their estate. The executor files the original Will with the Surrogates Court, which initiates the probate process. The Surrogates Court officially appoints the executor as named in the Will, giving the executor legal authority to act on the testator’s behalf.

The executor’s function is to locate and oversee all of the decedent’s assets and to determine each asset’s value. The majority of the decedent’s assets that become subject to the Surrogates Court will be located in the county where the probate process begins. Real estate is an exception, and probate may extend to any county where the real estate is located.

The executor will pay any taxes and debts owed by the decedent from the estate. The petition for probate that is filed with the Surrogates Court is public record and creditors are given seven months from the date the Letters Testamentary are issued to make claims against the estate for any money owed to them. If the executor rejects the claim, the creditor may take them to court, where a Surrogate Court judge will determine the debt’s validity. The executor is responsible for filing the deceased’s final, personal income tax returns. The executor’s last task, via court authorization, is to distribute what remains of the estate to the beneficiaries, as per the terms of the decedent’s Will.

Probate is required for any asset or account that does not have a joint owner or beneficiary named. If a joint owner or beneficiary is named then title changes automatically and probate becomes unnecessary.

If a person dies without a Will, they are said to have died intestate. An estate can also be deemed intestate if the Will presented to the court is found to be invalid. The decedent’s assets of an intestate estate follow a similar probate process but, is called an administration process and it begins with the appointment of an administrator. An administrator functions like an executor, receiving all legal claims against the estate and paying all outstanding debts and the decedent’s taxes.

Administrators must also seek out legal heirs, including a surviving spouse, parents, and children. The Surrogates Court will determine the distribution of the estate among its legal heirs as per New York State’s laws of intestacy. In the absence of any family or other heirs, which is unlikely, the remaining assets go to the State.

The more complex or contested an estate is, the longer the probate or administration process can take to finalize. The longer the process, the higher the attorney fees. Probate without a Will typically costs more than probate with a valid Will, but neither scenario is inexpensive. Surrogates Court files an inventory of the assets of each estate it oversees, which becomes public record. So. if you want to keep your estate private, it is best to pursue other estate planning options while you are alive, such as a trust.

As estate planning attorneys, we can help you determine what planning tools are best for you. Please contact us today at (631) 686-6500 to schedule a consultation to discuss your legal matters.

About the author : Christine Andreoli