the probate process

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 that rules on the validity of a will and vests the Surrogate’s Court (in New York) with oversight responsibility. If a person dies without a will, the process appoints an estate administrator rather than an executor.  The law firm of Susan G. Parker Law Associates, PC has over 30 years of experience handling estates, both large and small.

Probate Process

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 the assets held in the estate, number of beneficiaries, and the difficulty of giving notice of probate to necessary parties.

Factors that Contribute to Probate Process

  • The person who died (the decedent) had a Last Will and Testament.
  • The decedent’s beneficiaries cannot be served with notice of probate or challenge the validity of the Last Will and Testament, thereby creating a “will contest,” which is a legal battle.
  • The heirs cannot on the appointment of an administrator, who oversees estate administration if the decedent died without a Last Will and Testament.
  • Whether assets are easily identifiable and transferable at death.
  • Whether decedent’s affairs are in order and needed documents are accessible.

Estate Assets Not Included in Probate

  • 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 and probate will be needed.
  • Property held in trust does not go through probate.

Estate Administration

A petition is filed in Surrogate’s Court for the appointment of the executor of an estate (if there is a will) or an estate administrator (if there is no will). With probate, the process is designed to determine if a will is valid and to make sure the necessary parties are given notice of the proceeding. This means that everyone named in the will and everyone who would have inherited had there been no will (intestate takers) receives notice of the proceeding.

If there is no will, an estate administrator (who can be a family member or even a creditor) is nominated through a petition. Those who inherit when there is no will (intestate takers) receive notice. These intestate takers are typically a spouse (if married), children (if any), and parents, siblings, or nieces and nephews depending on the circumstances. Significant others, unmarried “partners”, and even unmarried parents to one’s children, do not get notice.

As part of the Surrogate’s Court petition, you must prove you have served notice on all people entitled to receive it. The petition is filed in the county where the decedent resided, and a filing fee based on the size of the estate is also submitted. In New York State, the maximum filing fee is $1250, if the estate is worth $500,000 or more. The fee is based on “probate assets”, which are only those which are owned in the decedent’s name alone. An asset that names a beneficiary or is co-owned with a right of survivorship is not a probate asset. Most notably, trusts are not probate assets, thus they are said to “avoid probate.”

It generally takes up to two months for the Surrogate Court to issue letters. These empower the appointed person to act on behalf of the estate. The first step is obtain a tax I.D. for the estate (like a social security number for a person). Then the process of estate administration begins: paying bills, collecting estate assets, selling a home or business. So-called “preliminary letters” of appointment may enable a “nominated executor” to sell a home before actual letters are issued.

Assets which are owned in the decedent’s name alone, must pass through probate to change the title. So, for example, if there is a deed in the name of one person, or the surviving spouse, probate is needed to sell the property. However, if property is jointly owned or names a beneficiary, that person inherits the property and estate administration is not needed. There is no way to name a successor owner for real estate apart from joint ownership on a deed or transferring the property to a trust.

Typically a bank or investment firm will release jointly owned assets or assets to a named beneficiary, upon a showing of a death certificate by the beneficiary. Sometimes they do ask for letters which appoint the executor or administrator, but the latter should not be necessary.

Our firm is often hired to file the petition and oversee estate administration.

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