If you recently lost a loved one you are undoubtedly going through a period of profound grief over your loss. If you also found out that you were named as the Executor of the estate in the decedent’s Last Will and Testament, or if you have decided to volunteer to be the Personal Representative (PR) in the event that the decedent dies without a Will, you will also be faced with handling the legal aspects of your loved one’s death during the probate of the estate. If you have never fulfilled the role of Executor/PR before, you may not know where to begin. To help you get started, a New York probate attorney offers the following advice on probating an estate.
Probate is the legal process that is typically required following the death of an individual. The law requires a decedent’s estate to go through the probate process for several reasons. First, probate ensures that the decedent’s estate assets will be properly inventoried and valued. Second, probate allows creditors of the estate the opportunity to file claims against the estate before assets are transferred out of the estate. Third, probate guarantees that Uncle Sam will collect any taxes due from the estate and finally, probate provides a platform for the transfer of estate assets to the intended beneficiaries and/or heirs of the estate.
Testate vs. Intestate Estates
One of the first steps required when probating an estate is to determine if the estate is an intestate or testate estate. If the decedent left behind a valid Last Will and Testament, the estate is referred to as a “testate” estate. If no Will was left behind, the decedent is said to have died “intestate.” This distinction is important because it determines who will oversee the probate of the estate as well as how the estate assets will be distributed. In the case of a testate estate, the person named by the decedent in the Will as the Executor will oversee the probate of the estate. Usually, this individual also has an original copy of the Will which is required by law to be submitted to the appropriate court. If the decedent died intestate, any competent adult can volunteer the be the PR and oversee the probate of the estate. Furthermore, if the decedent executed a Last Will and Testament, the terms of that Will dictate how the estate assets are to be distributed during the probate process. In an intestate estate, the New York intestate succession laws decide what happens to the decedent’s estate assets. Whether you are the Executor or PR, you will need to file the required legal documents to open probate and ask the court to officially appoint you to oversee the probate of the estate.
Tips from a Probate Attorney
Once you have determined that you will be the one handling the probate of the estate, the following tips may be helpful:
- Immediately identify, locate, and secure all estate assets
- Separate assets into lists of “probate” and “non-probate assets”
- Determine if the estate is required to go through formal probate or qualifies for a small estate alternative
- Prepare a list of known creditors of the estate
- Identify all beneficiaries and/or heirs of the estate and locate contact information
- Make sure that the estate has sufficient liquid assets to cover expected debts. If the estate lacks liquid assets, you will need to decide which assets to sell in order to raise the necessary funds.
- Perform preliminary calculations to determine if the estate will likely owe state and/or federal gift and estate taxes
Unless the estate assets are particularly modest, most Executors/PRs retain the services of an experienced New York probate attorney early on in the probate process to ensure that all the steps required to be taken are taken properly and that the process proceeds in an expeditious and cost-effective manner.
For more information, please download our FREE estate planning worksheet. If you have questions or concerns relating to the role of a probate attorney during the probate of an estate, contact the experienced estate planning attorneys at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.
Latest posts by Saul Kobrick (see all)
- Durable Power of Attorney and Elder Care Considerations - February 28, 2019
- When Is Probate Not Necessary in New York? - February 26, 2019
- Proposed Regulations Address “Clawback” Issue - February 21, 2019