If you recently lost a family member or loved one, you are undoubtedly going through a tremendously emotional time period. If you are also in charge of administering the decedent’s estate, either because you were appointed in a Will or because you volunteered, you also have an important job ahead of you. One of your first responsibilities as part of that job is to determine if the estate must go through formal probate or if an alternative for small estates is available. The probate lawyers at the Law Offices of Kobrick & Moccia help you decide if your loved one ’s estate is required to go through formal probate.
What Is Probate and Why Is It Required?
Over the course of a lifetime, almost everyone acquires assets that comprise their estate at the time of their death. Some people amass a huge estate that includes complex and valuable assets while other people own little more than their personal possessions at the time of death. Regardless of the size and value of assets owned by a decedent, those assets must be identified, valued, and passed down to the new owners. That is the primary purpose of the legal process known as probate. Probate also serves to authenticate a Last Will and Testament purportedly executed by the decedent as well as litigate any challenges to that Will.
Why Is Avoiding Formal Probate Desirable?
For most estates, some type of probate is required; however, if formal probate can be avoided is should be. The reason for this is that formal probate is costly, both monetarily and in terms of time. In the State of New York, it will take at least eight months to probate even a relatively simple estate if an alternative to formal probate cannot be utilized because creditors have seven months from the date the Surrogate Court issues letters to file a claim against the estate. Often, formal probate can take considerably longer than eight months. All the while, the probate assets remain unavailable to the intended beneficiaries. In addition, the longer it takes to probate an estate, the more expensive it is as a general rule because everyone involved (Executor, attorney, appraiser, accountant) is entitled to a fee for their services.
Small Estate Alternatives in New York
In the State of New York, when a decedent left behind less than $30,000 of personal property it is considered a small estate. It does not matter of the decedent left behind a Will or not; however, if real property owned by the decedent alone was left behind it is not considered a small estate. If the estate qualifies as a small estate, it can be administered using an alternative to formal probate referred to as “Voluntary Administration.” In a Voluntary Administration, the Surrogate’s Court appoints a Voluntary Administrator. If the decedent executed a Will prior to death, the 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.
Probate vs. Non-Probate Property
An important note for anyone charged with administering an estate. Not all assets are considered probate assets. Therefore, before you can decide if an estate requires formal probate, you must first determine which assets are probate assets and which assets bypass probate altogether. For example, assets held in a trust do not go through probate nor do proceeds from a life insurance policy.
Contact Probate Lawyers
Please feel free to download our FREE estate planning worksheet. If you have questions or concerns about the New York probate process, contact the New York probate lawyers 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
