The loss of a family member, or someone else close to you, is never an easy time. On the contrary, you may spend months – even years — grieving the loss of your loved one. Amidst that grief, however, someone has to handle the legalities that accompany a death. If you appear to be that person, your job will be to oversee the probate of the decedent’s estate. Understandably, the thought of having to navigate a legal system with which you are unfamiliar can be extremely intimidating. The first step in the probate process is deciding which type of probate is required. The Hauppauge probate lawyers at Law Offices of Kobrick & Moccia offer some help by explaining the types of probate available and providing some guidelines to help you decide which ones to use.
What Is Probate
When a person dies, he or she leaves behind an estate consisting of all assets, both personal and real as well as tangible and intangible, owned by the decedent at the time of death. The law requires that estate to go through the legal process known as probate, to ensure that all assets are identified and eventually distributed to the intended beneficiaries and/or heirs. Probate also serves as a supervised platform wherein creditors of the estate may file claims against the estate.
Why Does It Matter Which Type of Probate Is Used?
You may have heard people discussing the desire to include probate avoidance strategies into their own estate plan. One of the primary reasons for this is that formal probate is typically very costly, both in terms of time and in terms of money. Because creditors have seven months from the date Letters are issued by a Surrogate Court within which to file a claim against an estate, probating even a relatively simple estate will take at least that long, and usually much longer. As a general rule, the longer it takes to probate an estate, the most is costs to do so because everyone involved in the probate process is entitled to a fee, including the Executor, appraisers, attorney, accountants, and real estate professionals. Fortunately, in the State of New York, there is an alternative to formal probate for small estates that qualify.
Probate vs. Non-Probate Assets
Before you can decide what your probate options are, you must first determine what assets are to be included in the probate of the estate because eligibility for the small estate alternative depends, in part, on the value of the estate. Not all estate assets are required to go through probate. Common examples of non-probate assets that bypass the probate process altogether include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Assets held in an account designated as a “Payable on Death (POD)” or “Transfer on Death (TOD)”
- Certain retirement and pension funds
- Assets held jointly with rights of survivorship
Small Estate Probate in New York
In the State of New York, some estates qualify for a small estate alternative to formal probate referred to as a “Voluntary Administration.” To qualify for Voluntary Administration the decedent must have had less than $30,000 of personal property. If the decedent owned real property and it was titled jointly with another person, the estate may still qualify for Voluntary Administration; however, if the decedent owned real property in his/her name alone, the estate does not qualify for Voluntary Administration.
Whether or not the decedent left behind a valid Last Will and Testament does not impact the estate’s eligibility for treatment as a small estate. Not, however, that if there is a possibility of a wrongful death or other lawsuit in the future, a formal probate proceeding or an administration proceeding should be filed even if there was less than $30,000 of personal property at the time of decedent’s death.
If the estate does qualify for Voluntary Administration, the appropriate Surrogate’s Court will appoint a “Voluntary Administrator.” If the decedent left behind a Will, the person named as Executor of the Will is appointed the Voluntary Administrator. If there is no Will, then the closest heir is named the Voluntary Administrator. The Surrogate’s Court issues a certificate for each asset listed in the papers which the Voluntary Administrator collects and distributes according to the law.
Contact Hauppauge Probate Lawyers
For more information, please download our FREE estate planning worksheet. If you have questions or concerns relating to the probate of an estate in the State of New York, contact the experienced Hauppauge probate lawyers at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.
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