Tips to Avoid Probate in Westchester County, NY

Whether you have a will or not, probate will be required if assets you own don’t pass by operation of law.

A Will Goes So Far

If you have a will, you specify who gets what with respect to only certain assets. A will does not control everything. For example:

  • If you own real estate in joint names, the surviving owner may get the property by virtue of the title on the deed. It doesn’t pass under your will.
  • For IRA, pension and 401(k) assets, the person named on the designated beneficiary form inherits your account. If you don’t name a beneficiary, then it does pass to your estate and will go through probate.
  • If your will provides that your significant other gets your IRA account, but your beneficiary designation form says your child gets it, your child will get it.

If you don’t have a will, the state’s laws of intestacy provide a default setting as to who will get what. For married people, who die without a will, typically a spouse and children inherit. For single people, your estate may pass to parents and siblings. The point to remember is that probate affects passing title to assets, which don’t otherwise pass by operation of law. And this holds true whether or not you have a will.

What Does Probate Entail?

Probate starts when a person who represents your estate petitions the court for permission to be in charge of winding up your affairs and distributing assets. As part of the process, takers under your will are informed and if you don’t have a will, those who inherit by law are notified.

Once a probate petition is filed, your will becomes a public document. Once your heirs or beneficiaries are notified, they learn:

  • That they will or will not get something under your will.
  • That they can object to the appointment of the executor or administrator.
  • That they can object to the validity of the will.

Wrinkles may occur if there are minor beneficiaries or family members cannot be notified. Even if all goes well, it can take several months to get the court’s blessing for the executor or administrator to get started.

The executor or administrator gets down to the business of gathering your assets, making sure they are safe from theft or damage, paying your debts, paying any income or estate taxes you may owe, and then distributing the balance to your beneficiaries. Typically a final accounting is prepared to show what came in to the estate, and what was paid out and that all accounts are settled.

What Does Probate Cost?

If you read through the paragraphs above and imagine that an attorney is involved in every step, you have an idea of how expenses cumulate when it comes to probate. The fees for filing a probate petition in NY are based on the size of the estate. For 2014/2015they are:
Value of Estate

Less than $ 10,000 : $ 45.00
10,000 but under 20,000 :  $75.00
20,000 but under 50,000 : $215.00
50,000 but under 100,000 : $280.00
 100,000 but under 250,000 :  $420.00
 250,000 but under 500,000 :  $625.00
 500,000 and over :  $1,250.00

Why Avoid Probate?

The main reasons people want to avoid probate are to:
(1) Keep their private affairs private.
(2) Avoid the cost and hassle of notifying family members.
(3) Avoid potential disputes about whether the will is valid or who got what.

In many situations, probate is relatively simple. But if you own special types of assets, if there are difficult relationships among family members, or if there are disabled or minor beneficiaries – then avoiding probate may make sense.

The Benefit of a Living Trust

One way to avoid a large drawn out probate is to prepare a simple will which leaves everything to your “living trust.” The trust spells out who gets what and your trustee is charged with distributing your assets in the manner which is set forth in the trust. Unlike a will which is open to the public once it is offered for probate, the contents of your living trust are not made public.

To have the living trust as an effective “will substitute” it is important that the trust become the owner of all of your assets. This involves changing record title to your real estate, bank accounts etc. This involves some ongoing paperwork and changes on paper how your assets are owned. But it is the best strategy available to avoid probate and make sure your assets pass as you wish. A future article will go into more detail about creating a living trust to avoid probate.

With estate planning, one thing is quite clear. There is time to plan up until the day you die. And then it becomes too late.

Make sure things go the way you want. Please contact our firm, Susan G. Parker, Esq. PC, at (914) 923-1600 to get the process started.