At some point in your life you are likely to find yourself directly involved in the probate of an estate. At that time, you will find it very frustrating if you know nothing about the probate process. Even if you manage to go through life without ever becoming involved in the probate of someone else’s estate, you should still learn about the steps involved in the New York probate process so that you can take them into account when you create your own estate plan. Although the probate process is never exactly the same for any two people, the following steps are common probate process steps.
Steps in the New York Probate Process
- Submitting the Last Will and Testament to the court– the law requires anyone who has an original copy of a decedent’s Will to submit that Will to the appropriate court upon notification of the Testator’s death. If you are the person appointed as Executor in the Will, you should also file a petition to open probate and request the court to officially appoint you as the representative of the estate for purposes of overseeing the probate process. If the decedent died intestate, or without leaving behind a Will, any competent adult may petition to become the Personal Representative (PR) of the estate.
- Identifying, locating, and securing estate assets – as soon as possible after the decedent’s death the Executor/PR should start identifying, locating, and securing the decedent’s estate assets which may include both real and personal property as well as tangible and intangible assets.
- Categorizing assets – not all assets are required to go through the probate process. Because of this, all estate assets need to be categorized as either probate or non-probate assets before probate really gets underway. Non-probate assets will pass to the beneficiaries outside of the probate process. Common examples of non-probate assets include:
- Trust assets
- Proceeds of a life insurance policy, if they have a beneficiary
- Certain types of jointly held property
- Accounts designated as “payable on death” or “transfer on death”
- Retirement benefits
- Valuing assets – the Executor/PR must obtain a “date of death” value for all probate assets. Often, professional appraisers are retained to help value estate assets.
- Reviewing creditor claims – the Executor/PR reviews all claims and approves or denies them. Approved claims are paid out of estate assets.
- Litigating any challenges – if a Will contest is filed, the Executor must defend the Will submitted to probate. If that happens, the probate process effectively comes to a halt until the Will contest is fully litigated because the outcome determines how the estate is probated.
- Calculating estate taxes – all estates are potentially subject to federal gift and estate taxes. If any taxes are due, the tax debt must be paid before estate assets can be distributed and probate closed.
- Selling assets (if necessary) – sometimes an estate lacks sufficient estate assets needed to pay creditors and/or taxes. When that is the case, estate assets must be sold to raise the necessary funds to cover creditor claims and any tax obligation.
- Transferring assets – finally, at the end of the probate process, any remaining estate assets must be legally transferred to the intended beneficiaries under the terms of the decedent’s Will or distributed to the legal heirs of the estate pursuant to the New York rules of intestate succession.
For more information, please download our FREE estate planning worksheet. If you have questions or concerns relating to the New York probate process, contact the experienced estate planning attorneys at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.
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