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What is Probate?

In New York State, an Executor nominated under a will needs to petition the court in order to receive Letters Testamentary so that they can act.  The Executor will use the Letters to obtain and gather the assets of the estate.  An Executor is mainly responsible for paying the debts of the estate, filing relevant tax returns, and maintaining all assets until distribution to the intended beneficiaries.

The probate process essentially takes title to property out of the estate and gives it to the beneficiaries.  However, it is only necessary when a person passes away with a Will and their probate estate is worth more than $50,000.00.

Probate assets are those that were solely owned by the deceased person and did not have a designated beneficiary. Assets that are jointly owned or designate a beneficiary pass to the heirs outside of probate.  Assets that pass outside of probate are not to be included in the value of the probate estate.

Quick Tip regarding Probate Assets: Review your deed with an attorney to make sure you own your home jointly with your spouse, or if there are other co-owners, ensure that the deed designates a right of survivorship if that is the intention.  Many people believe the home that they live in with their spouse/significant other will just automatically pass to them when their spouse dies, but that is not always the case.

What is needed to begin the process of Probate?

The deceased person’s original Last Will and Testament and death certificate will need to be filed with the Surrogate’s Court along with a Petition to Probate to begin the process of probate.

Those who are named in the Will and those who are next-of-kin will need to be notified by waiver, notice, and/or citation that the decedent’s Will is being offered for Probate.  The purpose of this process is to make sure all relevant parties are aware of the filing and have an opportunity to object to the validity of the Will.

When all the relevant information is received by the Court, the parties have had an opportunity to object, and all objections (if any) have been resolved, the Court will issue Letters Testamentary to the Executor of the estate.

How long does the process of Probate take?

There may be a few months that pass between filing the Petition and receiving Letters Testamentary from the Surrogate’s Court in the case where none of the parties object to the validity of the Will.  It depends mainly on timely submissions to the Court of appropriate and required documentation and the current caseload of the Court in which you file.

What happens after Letters Testamentary are received?

Letters Testamentary allow the Executor to obtain a tax ID number for the estate, to open an estate bank account, to marshal the assets of the estate into the account, to pay debts and taxes of the estate, to sell assets if necessary, and to eventually distribute to the heirs.

The Executor is required to file an Inventory of Assets with the Court 6 months after Letters are received.

After all expenses of the estate are settled, and the period of time for creditor claims to attach to the estate has passed, the Executor may distribute relevant amounts to the beneficiaries as designated in the decedent’s Last Will and Testament.

The final filing closes out the estate with the Court and releases the Executor from his/her obligations as fiduciary.

What if the Estate is worth less than $50,000?

If the Decedent passes away with less than $50,000 in assets solely in their name, the Executor may bring a Petition for a Voluntary Administration also known as a small estate proceeding.  This process is much faster than a probate proceeding, and the filing fee is only $1.00.

What happens if after filing a small estate more assets are found, and the value of the Estate now exceeds $50,000?

You will need to close out the voluntary administration and file a probate proceeding.

Probate can be a time consuming and expensive process, but it is possible to navigate. Knowing what it is and what your loved ones can expect from the process is a step in the right direction. There are many estate planning tools available to bypass probate all together.  Contact an attorney to ensure that you have the most effective estate plan in place.

This article appeared in the August 26th edition of the Sullivan County Democrat.

This is not intended to be legal advise.  You should contact your attorney to discuss your specific situation.


Cynthia J. Hand is an Associate at the firm and practices estate planning.
She can be reached at 845-764-9656 and by email.[/column]

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