What is Probate?

When a person passes away, a lawyer is often called in to handle the paperwork involved with settling an estate’s assets.   “Probate”  is a legal proceeding which rules on the validity of a will and vests the Surrogate’s Court (in New York) with oversight responsibility in connection with estate administration. The law firm of Susan G. Parker, Esq. PC has over 30 years of experience handling estates, both large and small.

Probate and estate administration are often pain-staking, detail oriented processes that involve a lot of paperwork. It can be easy or hard, costly or not, depending on a number of factors such as whether:

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  • The person who died (the decedent) had a Last Will and Testament.
  • The decedent’s beneficiaries challenge the validity of the Last Will and Testament, thereby creating a “will contest” which is a legal battle.
  • The heirs can agree on the appointment of an administrator, who oversees estate administration if the decedent died without a Last Will and Testament.
  • Assets are easily identifiable and transferable at death.
  • Decedent’s affairs are in order and needed documents are accessible.

Not all estate assets go through probate.  Items which pass by “operation of law” do not go through probate. For example:

  • IRA/Pension/401k Benefits pass to the person named in the beneficiary designation form.
  • Life Insurance is paid to the beneficiary named in the policy.
  • Jointly Owned Property passes to the surviving joint owner if property is titled as  joint tenants or, as tenants by the entirety (for married couples.) NOTE: If property is owned as a “tenant in common,”  the decedent’s share will go to heirs named in a Will; probate will be needed.
  • Property held in trust does not go through probate.

Probate is also needed to appoint a representative if a decedent dies owning out of state property. Often an ancillary probate proceeding in that other state must be commenced to re-title such property.

Often it’s important to avoid probate.  Contact Susan G. Parker, Esq. PC to learn more about why you may want to avoid probate (914) 923-1600.