One of the most common objectives within a comprehensive estate plan is probate avoidance. If you have yet to create your estate plan, you may wish to consider adding probate avoidance tools and strategies into your plan as well. Of course, you need to understand why people consider probate avoidance such an important addition to their estate plans before you commit to including it in your plan. If you have never been directly involved in the probate of an estate, you likely only have a vague idea of what probate entails. To help you gain a better understanding of probate, the Nassau County estate planning lawyers at the Law Offices of Kobrick & Moccia explain the typical probate process.
What Is Probate and Why Is It Necessary?
When you die, you will leave behind an estate that consists of all the assets you owned at the time of your death. The law wants to ensure that those estate assets are properly identified and accounted for before they are transferred to the new owners.
In addition, the law has a vested interest in making sure all debts of your estate are paid, including any taxes owed by you and/or your estate, before assets are transferred out of your estate.
Who Is in Charge of the Probate of Your Estate?
When you contemplate the provisions in your Last Will and Testament you likely focus on decisions relating to the distribution of your estate assets. Without a doubt, deciding who will receive your assets when you are gone is important; however, it is not the only important decision you must make when executing your Will. Deciding who to appoint as the Executor of your estate is also part of creating your Will and can determine how expeditiously and effectively your estate is probated when the time comes because your Executor oversees the entire probate process.
What Happens during the Probate Process?
The probate process typically includes the following steps:
- Locating probate documents. An original copy of your Last Will and Testament must be located. It is always a good idea to leave an original Will with your Executor and your estate planning attorney. Additional estate planning documents, such as a trust agreement, insurance policies, and/or Letter of Instruction, may also be located.
- Identifying assets. A preliminary list of assets needs to be made in order to determine a rough idea of the estate’s value and the type of assets left behind.
- Deciding what type of probate is required. Most states, including New York, offer a simplified probate process, in lieu of formal probate, for small estates. If the estate qualifies, using the small estate alternative will save time and money.
- Initiating the probate process. An original copy of the Will, along with a petition to open probate, must be filed with the appropriate probate court, known as “Surrogate Court” in New York.
- Evaluating claims. Creditors must file a claim within the statutorily allotted time frame. The Executor reviews each claim and approves or denies the claim. Approved claims are paid using available estate assets.
- If anyone challenged the validity of the Will, the challenge must be litigated before the estate process can proceed. Your Executor is responsible for defending your Will during the litigation.
- Paying taxes. The Executor must prepare and file a federal estate tax return along with any other returns required. If any taxes are owed, those must be paid using available estate assets.
- Distributing assets. Finally, the remaining assets are distributed to the beneficiaries under the terms of the Will or, in an estate where no Will was left behind, to heirs using the New York intestate succession laws.
Contact Nassau County Estate Planning Lawyers
For more information, please download our FREE estate planning worksheet. If you have more specific questions or concerns about the probate process, contact an experienced estate planning attorney at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.-+*
Latest posts by Saul Kobrick (see all)
- How Do I Prove Lack of Testamentary Capacity in a Will Contest? - December 6, 2018
- What Will Happen to Aretha Franklin’s $80 Million Estate Since She Died without a Will? - December 4, 2018
- Probate Steps for the New Executor - November 29, 2018