Did you recently learn that you were appointed to be the Executor of the estate of a recently deceased loved one? Or did you decide to volunteer to be the Administrator for the estate of a recently departed loved one who died intestate, or without a Last Will and Testament. Either way, you have a very important job to do during a time when you are still grieving the loss of your loved one, thereby increasing the odds of making a mistake. The Hauppauge probate attorneys at Law Offices of Kobrick & Moccia discuss common mistakes to avoid when probating an estate.
Probate Basics for the Beginner
Before discussing common mistakes you might make as the Executor or Administrator of the estate, it helps to have an overall understanding of the probate process itself. Probate is the legal process required after someone dies. Probate serves several important functions, including:
- Authenticating the decedent’s Will and litigating any challenges to a Will submitted for probate
- Identifying, locating, valuing, and eventually distributing estate assets
- Identifying and locating heirs of the estate
- Ensuring that taxes owed to the state and/or federal government are paid
As the Executor/Administrator of the estate, your job is to oversee the probate process. Typically, an Executor/Administrator retains the services of an experienced estate planning attorney to assist during probate in order to minimize the likelihood of making a costly mistake.
Common Probate Mistakes
Although every estate, and every probate process, is unique, there are some common mistakes you should try to avoid while probating an estate, including:
- Going it alone. If you have never before served as an Executor/Administrator it is not wise to try and probate an estate without the assistance of a legal professional. The probate process often requires at least a basic knowledge of legal and financial concepts that the average person does not have.
- Failing to properly categorize assets. Not all estate assets are required to go through probate. As you identify estate assets, make sure you put them in the appropriate category. Common examples of non-probate assets include:
- Trust assets
- Proceeds of a life insurance policy
- Certain types of jointly help property
- Funds held in certain types of retirement accounts
- Forgetting “Date of Death” values. One of the things you will need is a “Date of Death” value for all estate assets. The sooner you get started on these the easier they will be to calculate. You may need to retain the services of professional estate appraiser or real estate appraisers to help you with this task.
- Not recognizing the estate’s eligibility for a small estate alternative. Most states, including New York, offer an alternative to formal probate for small estates that qualify. In New York, if the decedent’s personal property was valued at less than $30,000, the estate might qualify for the Small Estate Affidavit program.
- Distributing assets too soon. As the Executor/Administrator, you have the authority to approve creditor claims and pay creditors as well as to distribute assets to intended beneficiaries. Sometimes, however, an estate does not have sufficient assets to pay all claims and honor gifts in a Will. When that is the case, creditors must be prioritized according to law and assets distributed according to that priority. If you fail to follow the law and distribute assets accordingly, you could be held personally liable.
- Calculating gift and estate assets wrong. Every estate is potentially subject to federal gift and estate taxes. Part of your job is to calculate those taxes and determine if the estate owes Uncle Sam anything. Because the tax can involve lifetime gifts, exemptions, and deductions it is easy to make a mistake.
Contact Hauppauge Probate Attorneys
For more information, please download our FREE estate planning worksheet. If you have questions or concerns relating to the mistakes often made during the probate process, or about the probate process in New York in general, contact the probate attorneys at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.
- “Last Will and Testament” Origin - April 1, 2021
- Do I Need a “Durable” Power of Attorney? - April 2, 2020
- Joint Tenancy Pros and Cons - March 31, 2020
