Because probate is required of almost every estate, there is a high likelihood that you will find yourself directly involved in the probate of an estate at some point during the course of your lifetime. A loved one might appoint you to be the Executor of their estate or you might volunteer to oversee the administration of the estate of someone who died intestate (without a Will). That same loved one might name you as the beneficiary of the estate or you might be a legal heir. The possibility of being a party to the probate of an estate is one good reason to learn more about the probate process. Even if you manage to avoid involvement in the probate of someone else’s estate, a basic knowledge of the probate process remains important so that you can understand the role it will play in the creation of your own estate plan. With that in mind, the probate attorneys at the Law Offices of Kobrick & Moccia have created several frequently asked questions and answers relating to the probate process that you may find beneficial. If you have specific questions relating to the probate of your own estate, or that of a loved one, feel free to contact out office to schedule a consultation.
1. What is probate?
When a person dies, he or she leaves behind an estate that is made up of all assets owned by the decedent at the time of death. Ownership of those assets must eventually be transferred to the beneficiaries and/or heirs of the estate. Debts of the estate must also be paid. Probate is the legal process that ensures that all of that occurs in a timely and efficient manner.
2. Is probate always required?
Some type of probate is almost always required; however, formal probate may be avoided by small estates that qualify for an alternative to formal probate. Each state determines what constitutes a small estate and what the procedures are for administering a small estate. In the State of New York, for example, an estate that has assets consisting of only personal property valued at less than $30,000 may qualify for a small estate alternative known as “voluntary administration.”
3. What is the difference between a “testate” and an “intestate” estate?
If the decedent left behind a Last Will and Testament the estate is referred to as a “testate” estate. If the decedent failed to execute a Will prior to his/her death, the estate is known as an “intestate” estate. The primary difference between the two is found in how the estate assets are distributed. In a testate estate, the decedent’s Will determines how the estate’s probate assets are to be distributed. If the decedent dies intestate, the state intestate succession laws dictate how the estate assets are distributed. Typically, intestate succession laws require the estate assets to be distributed to close relatives only, such as a spouse or children if any survived the decedent and then parents and/or siblings if no spouse and/or children survived the decedent.
4. Who oversees the probate of an estate?
If the decedent left behind a Will, the individual appointed as the Executor by the Testator in that Will is who will oversee the administration of the estate. If the decedent died intestate, any competent adult may volunteer to be the Administrator of the estate. If no one volunteers, the court must appoint someone. Ultimately, the court must approve of either an Executor or Administrator. For the most part, the duties and responsibilities of an Executor and Administrator are the same.
5. Do all assets go through probate?
Some assets, referred to as “non-probate” assets, may bypass the probate process altogether, allowing them to be distributed to beneficiaries shortly after the decedent’s death instead of having to wait until the probate process reaches its conclusion. Examples of non-probate assets include:
- Assets held in a trust
- Certain types of jointly held property if held with “rights of survivorship”
- Life insurance proceeds
- Funds held in an account designated as “payable on death(POD)” or “transfer on death (TOD)”
- Certain funds held in retirement or pension accounts
6. What happens during probate?
Just as every decedent was unique, so is the estate that he/she left behind. Consequently, the probate of no two estates is exactly the same. There are, however, some common steps, such as:
- Identifying, locating, securing, and valuing all estate assets
- Initiating the probate process by submitting the original Last Will and Testament (if applicable) and a petition to open probate in the county where the decedent was a resident at the time of death.
- Identifying, locating, and notifying legal heirs of the estate if the decedent died intestate.
- Notifying creditors that probate is underway.
- Reviewing creditor claims and approving or denying each claim.
- Calculating and paying any state and/or federal gift and estate taxes
- Transferring the remaining assets to the intended beneficiaries/heirs of the estate.
7. How long does the probate process take?
The amount of time it takes an estate to get through the probate process depends on several factors, including the type of probate required, the size, value and complexity of the estate, and the skill and efficiency of the Executor/Administrator. In the State of New York, it will take a minimum of seven months to probate an estate because creditors have that long to file claims against the estate. As a general rule, the larger and more valuable the estate, the longer it takes to probate. In addition, if someone challenges the validity of the decedent’s Last Will and Testament, the ensuing Will contest will prolong the probate process as well.
If you have specific questions regarding the probate process in general, or the probate of a specific estate, contact an experienced probate attorney at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.