It’s not uncommon for there to be a bit of confusion when it comes to the legalities associated with probates, wills and estate planning. It can be overwhelming, especially when you’re either trying to deal with overload due to the massive amounts of information coming at you from a number of sources or if you can’t find a straight answer to the simplest questions.
You know it’s problematic when efforts are being made to simplify the probate process to a more uniform national standard. A perfect example: the Uniform Probate Code was established in 1969, but it was only adopted by 18 states. For those states, the rights of a surviving spouse are clearly outlined should there be a death without a will. Not only are there states that don’t have those specific characteristics, but these codes have been “substantially” updated at least ten times. There have been several calls for Congress to take action, though to date those calls have been largely ignored.
For most of our clients, the big question is whether probate is required. The second question we hear is if having a will eliminates the need for probate.
Defining Probate in New York
The goal of probate is to provide a uniform method of determining potential heirs, paying off any debts associated with the estate and then distributing any assets per the will, or absent of that, the New York laws. The inclusion of a will is important, but it doesn’t eliminate probate.
What gets the process moving is the filing of a petition with the New York Probate Court, or “Surrogate’s Court”. The petition is accompanied by a death certificate and a will if one exists. There’s a filing fee, which is determined based on the value of the estate.
But what happens if the will is contested? That presents a host of added documentation, investigation and processes. Speaking of wills, the absence of one can significantly affect the timeframe of concluding probate. The property and assets can’t be distributed until the courts are satisfied all of the proverbial bases are covered.
For instance, if a man dies while he’s away from home and let’s say he’s accompanied by a girlfriend. As the process begins, the girlfriend insists the deceased had no children – and certainly not a wife. But what happens if another woman comes forward a year later and citing that she was indeed his wife, but they’d been separated? Worse – what if two adult children come forward and say no one told them that their father had died? It’s not so far-fetched for a couple that’s no longer together, but still married, to not know one has died. Even if it’s not likely, it’s certainly possible. These are the scenarios the courts try to avoid. It can take months to satisfy the courts that every possible avenue has been considered.
For those whose estates in New York are less than $30,000, there exists the Small Estates Affidavit Program. Many find it easy to file online, however, that might not be the best route. An estate planning attorney can help with the details while navigating the endless requirements. While it’s generally an easier process, even it has its own logistics. One example has to do with real estate. This process is only made available to those who did not own real estatet. It’s not designed to handle the distribution of these types of assets.
Finally, and before the will’s status is accepted, it goes to the county’s Surrogate Court where the person died. Once the court’s satisfied of its validity, it issues letters testamentary to the executor named in the will.
It makes sense, then, that most prefer the legal guidance a qualified estate planning lawyer can provide. We encourage anyone who’s concerned about the probate process in New York to give us a call.