When a loved one passes away, it can be a difficult and emotional time for their family and friends. Amidst the grieving process, there are also legal matters that need to be addressed, such as distributing the deceased’s assets and settling their debts. In New York, the probate process is the legal mechanism for handling these matters.
The New York probate process is a complex and often confusing system that involves navigating various legal procedures and requirements. It can be especially overwhelming for those who are not familiar with the legal system or who have never been through the probate process before.
In this article, Eastcoastlaws.com will provide an overview of the New York probate process, including the different types of probate, the steps involved in the process, and important considerations for those involved in probate proceedings. Whether you are a family member, executor, or beneficiary, understanding the probate process in New York can help you navigate this challenging time with greater ease and confidence.
Is Probate Necessary?
Assets that must go through probate are often ones that were entirely owned by the deceased and did not have a beneficiary designated to allow them to legally pass to another person. Included in this are individual bank accounts, single-owner residences, automobiles, jewels, works of art, money, and antiquities.
Non-probate assets include:
- Assets held in trust
- Bank accounts with a named beneficiary
- Retirement accounts, like a 401k and IRA
- Life insurance policies with a named beneficiary
- Jointly held savings, checking, and brokerage accounts
- Jointly held real property
Probate may not be necessary if:
- The estate is small. In New York, a small estate or voluntary administration proceeding can be filed as an alternative to probate if the decedent had less than $30,000 of personal property either with or without a will.
- There are no probate assets. If a person’s estate consists solely of non-probate assets, there is no need for the probate process.
- The estate plan was created to avoid probate. Individuals with a moderate to high net worth often take steps to prepare an estate plan that avoids probate as a way to simplify the distribution of assets to their heirs.
Is probate mandatory In NY?
Probate is not always mandatory in New York, but it is required in certain circumstances. Probate is mandatory in New York when a person dies with a will and their assets exceed a certain value threshold. In New York, if the total value of the decedent’s assets exceeds $50,000, probate is required to transfer the assets to the beneficiaries named in the will.
However, if the decedent’s assets are held in certain types of trusts, such as a living trust, probate may not be necessary. Additionally, if the value of the decedent’s assets is below the probate threshold and there are no contested issues, probate may be avoided through a simplified process known as a small estate administration.
It’s important to note that even if probate is not mandatory, it may still be beneficial to go through the process to ensure that the decedent’s wishes are carried out and to protect the beneficiaries from future legal issues. An experienced probate attorney can help you understand whether probate is necessary for your particular situation and guide you through the process.
How Does Probate Process Work In New York?
Probate is the legal process in New York that is used to validate a deceased person’s will and ensure that their assets are distributed according to their wishes. Here is a general overview of how the probate process works in New York:
- Filing a Petition: The probate process begins with the filing of a petition with the Surrogate’s Court in the county where the deceased person resided. The petition must include the original will, death certificate, and other required documents.
- Appointment of Executor: If the court determines that the will is valid, it will appoint an executor to oversee the probate process. The executor is typically named in the will, but if there is no named executor or the named executor is unable or unwilling to serve, the court will appoint someone else.
- Notifying Creditors and Beneficiaries: The executor is responsible for notifying the deceased person’s creditors and beneficiaries of the probate proceedings. Creditors have a certain amount of time to file claims against the estate, and the executor is responsible for paying any valid debts using the assets of the estate.
- Valuing the Estate: The executor must also determine the value of the deceased person’s assets and file an inventory with the court. This includes all property, bank accounts, investments, and other assets owned by the deceased person.
- Distribution of Assets: Once all debts and taxes have been paid, the executor is responsible for distributing the remaining assets to the beneficiaries named in the will. If there is no will, the assets are distributed according to New York’s intestacy laws.
The probate process in New York can be complex, and it’s important to work with an experienced probate attorney to ensure that everything is done properly and efficiently.
The precise rules governing probate in New York are set forth in the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trust Law (EPTL). The probate process is a matter of public record under state law.
Letters testamentary are the official papers that grant someone the power to serve as the executor. For the time and labor necessary to divide the estate, the executor is permitted to receive a commission. Based on the size of the estate, the commission is calculated.
A person is considered to have died intestate if they pass away without leaving a will. If probate is required, a family member or acquaintance must apply to the court for permission to serve as executor.
How Long Does It Take For A Will To Go Through Probate In New York?
The time it takes for a will to go through probate in New York can vary depending on several factors, including the complexity of the estate and whether any disputes arise. In general, the probate process in New York takes between six months to a year, but it can take longer in some cases.
Here are some factors that can affect the length of the probate process:
- Size of the estate: If the estate is large or complex, it may take longer to value the assets and distribute them to the beneficiaries.
- The number of beneficiaries: The more beneficiaries there are, the more complicated the distribution process may be, which can cause delays.
- Creditor claims: If there are many creditor claims against the estate, it may take longer to settle them and distribute the assets to the beneficiaries.
- Disputes among beneficiaries: If there are disputes among the beneficiaries or challenges to the validity of the will, the probate process can be delayed significantly.
It’s important to note that New York has a mandatory waiting period of seven months after the executor is appointed before the probate process can be completed. This is to allow creditors and others to file any claims against the estate. In some cases, the executor may be able to distribute some assets to the beneficiaries before the waiting period is over.
The length of time it takes for a will to go through probate in New York can vary depending on many factors, and it’s important to work with an experienced probate attorney to ensure that the process is completed as efficiently and effectively as possible.
Who Are Heirs-At-Law?
Those who would be entitled to inherit the decedent’s property under intestacy law if they passed away without a will are referred to as heirs-at-law. This often includes surviving parents, siblings, children, or spouses. The first preference for inheritance goes to the nearest living relatives. Because they have the legal ability to challenge the will if they were eligible to inherit when the decedent died intestate, heirs-at-law are crucial to the probate process. The fourth person would be able to contest the will if they believed the omission was unintentional, that the decedent was not of sound mind at the time the will was created, or that the decedent was unduly influenced to make the will, for example, if a man dies and only names three of his four living children in his will.
Do I Need A Probate Attorney In New York?
While it is not required by law to have a probate attorney in New York, it is highly recommended to work with an experienced probate attorney throughout the probate process. Here are some reasons why:
- Legal Guidance: Probate can be a complex and confusing process, and an experienced probate attorney can provide valuable legal guidance to ensure that everything is done correctly and efficiently.
- Minimize Disputes: Disputes between beneficiaries or other parties can arise during probate proceedings, and an attorney can help to minimize the likelihood of disputes and provide guidance on how to resolve them if they do occur.
- Meet Deadlines: There are strict deadlines and legal requirements that must be met during the probate process, and an attorney can ensure that everything is done on time and in compliance with the law.
- Protect Beneficiary Interests: An attorney can also help to protect the interests of the beneficiaries, ensuring that their rights are protected and that they receive the assets they are entitled to.
- Navigate Complex Estates: If the estate is large or complex, an attorney can help navigate the various legal and tax issues involved and ensure that everything is properly handled.
In short, working with a probate attorney in New York can help to ensure that the probate process goes smoothly, minimizing the likelihood of disputes and protecting the interests of all parties involved.