Probate is the legal process that takes place after someone dies, in which their assets are distributed to their heirs or beneficiaries. In New York, probate can be a complex and time-consuming process, requiring the guidance of an experienced probate attorney. If you are the executor of an estate or a beneficiary, it is important to understand the steps involved in the probate process in New York. This Eastcoastlaws.com article will provide a comprehensive overview of the ultimate steps of the probate process in New York, including filing the will, notifying heirs and beneficiaries, inventorying assets, paying debts and taxes, distributing assets, and closing the estate. By following these steps, you can ensure that the probate process is completed efficiently and effectively, while also complying with New York state law.
Probate Law In New York
A probate action is a legal procedure in a New York State Surrogate’s Court that establishes the authority to act as an estate’s fiduciary. An administrative procedure can be started instead, though. Little estate administration, also known as voluntary administration, is a straightforward process that can be used in place of full probate if an estate is extremely modest. Of course, how financially secure the deceased person was will determine this. To try to prevent probate and streamline the process, some people create estate plans and employ estate planning strategies.
Being the executor of an estate entails a lot of duties that will take up a lot of your time and energy, especially because it is typically only required as a result of a terrible circumstance. Dealing with a loved one’s estate might be much harder than grieving their loss. You might have to get the will proved if you are the executor of an estate in New York. You will learn how to achieve that from this article.
Steps Of Probate Process In New York
Getting Proof Of Death
Several estate administration and asset management procedures will need the use of death certificates. The executor of an estate is required to get certified death certificates.
Submission Of Petition And Supporting Documents
The county where the deceased was a resident on the day of their death is where the petition for probate must be filed. The petition for probate must be submitted with the original of the decedent’s final will and testament, a copy of the death certificate, and the filing fee. There may be a need for further affidavits and supporting documents, depending on the financial circumstances. Again, if you feel it is necessary, an estate lawyer can assist you with this. A person’s death is referred to as testate if they leave a will. The legitimacy of their final will and testament must be established, and the Surrogate’s Court must be notified. The Surrogate’s Court accepts a person’s will through the New York probate process, which also authorizes a qualified fiduciary to manage that person’s personal property.
If a person passes away without leaving a final will and testament, they are said to have died intestate. If a person passes away without leaving a will, no one is left to handle their affairs or estate. In these situations, the beneficiaries may be chosen using the decedent’s family tree.
Hiring A Probate Lawyer
Hiring a probate lawyer can make the process easier and less stressful, ensuring that everything is handled properly and efficiently. There are several reasons why you might want to consider hiring a probate lawyer. First, a probate lawyer can help you navigate the complex legal requirements of probate, ensuring that all necessary steps are taken to distribute the estate’s assets to its beneficiaries. They can also help you prepare the necessary documents and filings, including the petition for probate and any required tax filings.
In addition, a probate lawyer can help you resolve any disputes that arise during the probate process. For example, if there are multiple heirs or beneficiaries with conflicting interests, a probate lawyer can help mediate and resolve these disputes, ensuring that everyone’s interests are protected.
Finally, hiring a probate lawyer can save you time and stress. The probate process can be time-consuming, and having a lawyer handle the process for you can free up your time to focus on other important matters. Additionally, a lawyer can handle any communication with the court and other parties involved, reducing your stress and ensuring that everything is handled properly. If you are considering hiring a probate lawyer, it is important to choose someone with experience in probate law in your state. You may want to ask for referrals from friends or family members or search for a lawyer online. Be sure to schedule a consultation with any potential lawyers to discuss your case and determine whether they are a good fit for your needs.
Notice Of Probate Proceedings
All necessary parties must be notified of the probate action. The Surrogate’s Court lacks jurisdiction over some interested parties unless a decree is issued by it. Depending on the circumstance, different parties may be required to get noticed, although they almost always include the heirs at law or those who would inherit even in the absence of a will.
A different kind of notice may be required depending on the person’s relationship with the deceased. The manner of sending the notice to these persons will depend upon their residence.
Proof Of Legitimacy Of Last Will
The probate procedure’s main objective is to prove the validity of the will—that it was properly executed, that it belonged to the deceased, and that the decedent had the mental capacity to form a will—and that it belonged to them. These requirements must be proven by the petitioner. It is crucial to confirm that the will’s maker had the testamentary ability at the time it was signed. To establish the validity of the will, the witnesses must be questioned under oath. Nonetheless, this investigation is typically skipped if the testator and witnesses signed a self-proving affidavit.
This document contains a sworn statement attesting to the validity of the will. If a credible statement is lacking, the petitioner may attempt to obtain an affidavit from witnesses who were aware of the owner’s passing in order to waive the examination.
The appointed estate executor will receive “letters testamentary” from the Surrogate’s Court if the court determines that the will is valid, appointing him as such and granting him a certificate of authority to gather the estate’s assets, pay the estate’s debts and taxes, and distribute the estate’s assets to the beneficiaries specified in the will.
The Surrogate’s Court may issue preliminary letters testamentary if there are delays in a will’s probate because the distributees are connected or hard to find, or if a will challenge is anticipated.
Executor’s Bond
The executor might be asked to provide a bond to ensure that the job is completed correctly. The majority of them will contain language allowing the executor to function without posting a bond, while it may occasionally be required. The bond acts as insurance, covering any losses the executor may incur.
The Surrogate will issue a decree granting probate and authorizing the issuance of the letters testamentary to the executor once the Surrogate is satisfied that the will is legitimate, that the required parties have had sufficient notice, and that the prospective executor is qualified for the job. These letters testamentary are evidence of the executor’s authority to represent the estate.
Determining Assets
In some circumstances, the executor is well-versed in the decedent’s property. Regarding the existence of assets in other cases, there might not be much information available. A number of methods can be used to determine the assets of a probate estate. The administrator of the probate estate is required to list the decedent’s assets. An asset list must be submitted to the court no later than six months following the appointment date, or the estate tax return due date, whichever comes first. Real estate and occasionally other expensive commodities should undergo an appraisal.
The indicated personal assets will automatically pass to another individual if a beneficiary designation is made. The personal property, however, will go to one of the dependent beneficiaries if the beneficiary passes away. One or more examples of probate assets include real estate with a title fully in the decedent’s name (including real estate investments), individually-held savings, bank, and brokerage accounts, vehicles, jewelry, cash, and electronic equipment.
An asset is considered a probate asset if it hasn’t been designated as a beneficiary and doesn’t pass on its own. Real estate held solely in the name of the decedent is in fact referred to as probate property. However, if the deed mentions “joint tenants,” any personal property that the dead owned jointly with that person or for which she named a beneficiary goes automatically and does not go through the probate procedure.
A retirement account or retirement benefits, a life insurance policy with named beneficiaries, assets held in trust bank accounts with named beneficiaries, and any accounts held with joint ownership, such as joint bank accounts, are classified as non-probate assets.
Listing The Financial Obligations Of The Deceased
When someone passes away, their financial obligations become the responsibility of their estate. Here are some of the common financial obligations that may need to be addressed:
- Funeral expenses: The cost of the funeral and burial or cremation is typically one of the first expenses that will need to be paid.
- Debts: The deceased may have had outstanding debts, such as credit card balances, car loans, mortgages, or personal loans. These debts will need to be paid off by the estate if there are sufficient assets to cover them.
- Taxes: Income taxes for the year of death, as well as any estate taxes, may need to be paid.
- Medical expenses: If the deceased had medical bills that were not covered by insurance, these expenses will need to be paid by the estate.
- Estate administration expenses: There may be costs associated with administering the estate, such as legal fees, accounting fees, and court costs.
It’s important to note that not all of these expenses will necessarily apply in every situation. The specific financial obligations of the deceased will depend on their individual circumstances.
Notifying Appropriate Parties
An executor of an estate must notify the family of the deceased, must notify potential beneficiaries or heirs, and must notify creditors about the death and about the probate process.
Once Assets Have Been Determined
Although partial distributions are occasionally permitted, you must pay creditors before distributing any assets to the recipients. Lenders of mortgages and credit card companies are two instances of creditors. Prior to determining if the estate has enough funds to cover the cost of the funeral and any administration costs, debts shouldn’t be paid off. Funeral and administrative costs are prioritized over all other debts. At this time, the executor must also submit a federal estate tax return for the decedent and settle any estate debts. Every action conducted on the estate’s behalf, including every expenditure, must be painstakingly documented. You must do this, although occasionally heirs, creditors, or the court may ask questions or make complaints. Keep accurate records so that you can be held accountable for your actions.
Filing Probate Forms And Attending Probate Hearings
The executor of an estate is responsible for initiating proceedings in the probate court and is required to appear in court alongside the attorney retained to handle the estate’s business. In most situations, beneficiaries or heirs should also be present during the probate process to make sure there are no issues that could jeopardize their inheritance, such as a will challenge.
Accountability And Distribution Of The Estate
The final step in the probate process is accounting. Executors are frequently relieved to reach this stage of the process since they are almost done and the remaining assets are ready to be allocated to the beneficiaries. Once all assets have been acquired, all obligations have been computed, and all disputes have been resolved, the executor is ready to give an accounting. Simply expressed, accounting is the executor’s method of keeping track of the money collected, the money paid out (including estate taxes and payments to creditors), and the distribution of the remaining assets. The beneficiaries’ approval of the account and proof from the beneficiaries and creditors that they have got their rightful compensation are requirements for the executor.
The majority of estate settlements take done informally and outside of court. The executor’s probate lawyer often establishes the account, with the consent of each beneficiary. The beneficiaries must approve the account, verify that they have received their benefits, and release the executor of liability by signing a Receipt and Release form. For those who are now experiencing sadness, the approach is simpler in this instance.
For a number of reasons (such as when an interested party cannot be located or won’t accept the executor’s account), some estates are settled through judicial accounting actions. The executor’s petition, in which she asks the court to approve her account, is the first stage in this process. All beneficiaries, creditors, and other interested parties must be informed of the process in order for them to have the chance to object. The Surrogate is qualified to hold a hearing to resolve a dispute. The Surrogate ultimately issues an accounting decree that seals the account and releases the executor from liability; copies of this accounting decree are available in the public probate records.
Conclusion
The probate procedure can be intimidating, but if you follow the seven easy procedures we’ve listed, you can get through it very quickly. Never hesitate to ask for help if you ever feel lost or if you think you might require professional advice. An expert in estate planning will be pleased to walk you through the procedure and respond to any questions you may have.
