• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Law Offices of Kobrick and Moccia

Long Island Estate Planning Attorneys

ESTATE, TRUST PLANNING &
ELDER LAW INFORMATION CENTER

Call Now: (800) 295.1917

  • Attend Our Free Webinars
  • Home
  • Our Firm
    • About Our Firm
    • Client Testimonials
    • Meet Our Team
  • Services
    • Blended Family Planning
    • Elder Law
    • Estate and Gift Tax Figures
    • Estate Planning Services
    • IRA & Retirement Planning
    • Legacy Planning
    • LGBTQ Estate Planning
    • Pet Planning
    • SECURE Act
    • Special Needs Planning
    • Trust Administration
  • Elder Law
    • Coping With Alzheimer’s
    • Guardianship
    • Medicaid Planning
    • Nursing Home Planning
  • Resources
    • Articles
    • Elder Law Resources
      • Commack Elder Law
      • Elder Law Reports
      • Harrison Elder Law
      • Hauppauge Elder Law
      • Rockville Centre Elder Law
      • White Plains Elder Law
    • Estate Planning Definitions
    • FREE Estate Planning Worksheet
    • FREE Seminars
    • Frequently Asked Questions
      • Elder Law
      • Estate Planning
      • Families Without an Estate Plan
      • Legacy Wealth Planning
      • LGBTQ Estate Planning
      • Medicaid
      • Probate
      • Trust Administration
      • Trust Administration & Probate
      • Wills and Trusts
    • Is My Estate Plan Outdated?
    • Legacy Wealth Planning Consultation Form
    • Medicaid Resources
    • Probate Resources
      • Harrison Probate
      • Hauppauge Probate
      • Long Island Probate
    • Probate Checklist
    • Special Reports
      • Advanced Estate Planning
      • Basic Estate Planning
      • Estate Planning for Niches
      • Trust Administration
    • Top Estate Planning Techniques
  • Communities We Serve
    • Nassau County
      • Garden City
      • Lynbrook
      • Malverne
      • Rockville Centre
    • Suffolk County
      • Commack
      • Dix Hills
      • Hauppauge
      • Nesconset
      • Smithtown
    • Westchester County
      • Harrison
      • Mamaroneck
      • Rye Brook
      • White Plains
  • Webinars
  • BLOG
  • Reviews
    • Our Reviews
    • Review Us
  • Contact Us
Home » Probate » Understanding Probate Law in New York

Understanding Probate Law in New York

August 29, 2016 by Anthony Moccia

Probate law in new yorkAt some point in your life you will likely find yourself involved in the probate of an estate. When that occurs, you may find yourself feeling confused and a bit frustrated. You are not alone. For most people, the probate process is a complex process that is difficult to navigate. If you are involved in the probate of an estate in the State of New York, it may be helpful to understanding the basics of probate law in New York.

What Is Probate?

Probate is the legal process that is typically required following the death of an individual. Probate serves several important purposes. First, probate ensures that the assets of the decedent are identified, located, valued, and eventually distributed to the intended beneficiaries or heirs of the estate. Second, it allows creditors of the estate to file claims against the estate. Finally, it ensures that taxes owed to the state or federal government are paid before assets are transferred out of the estate.

Are All Estate Assets Part of the Probate Process?

No. Although most assets owned by a decedent become part of the probate process, there are several exceptions to the general rule. Common non-probate assets include:

  • Assets held in a trust
  • Proceeds of a life insurance policy
  • Certain types of jointly held property
  • Assets held in an account designated as “Payable on death (POD)” or “Transfer on death (TOD)”
  • Benefits from some retirement accounts

Will Formal Probate Be Required?

Although most estates will require formal probate, not all do. In the State of New York, if the decedent left an estate that had less than $30,000 of personal property it may be able to be probated as a small estate, formally called a “voluntary administration.” In a small estate proceeding, the Surrogate’s Court appoints a Voluntary Administrator. If the decedent left behind a Last Will and Testament,  the Executor of the Will is appointed the Voluntary Administrator. If there is no Will, then the closest heir is named the Voluntary Administrator. The Surrogate’s Court issues a certificate for each asset listed in the papers which the Voluntary Administrator collects and distributes according to the Will, or if none, then according to the New York intestate succession laws.

Opening Probate and Steps Involved in Probate

As soon after the death of the decedent as possible, the Executor of the estate needs to get the probate process started. This is accomplished by filing the original Will, along with a death certificate and a petition to probate in the Surrogate Court located in the county where the decedent was a resident at the time of death. Once probate has started, a number of steps typically follow, including:

  • Identifying and locating assets. The Executor (EX)/Personal Representative (PR) must identify all estate assets, including real and personal property as well as tangible and intangible assets.
  • Valuing assets. A “Date of Death (DoD” value for every asset in the decedent’s estate must be obtained.
  • Reviewing claims. The EX/PR must review all claims filed by creditors and approve or deny the claims and pay approved claims out of estate assets.
  • Litigating challenges to the estate. If any challenges to the estate are filed, such as a Will contest, the EX/PR must defend the estate.
  • Calculating and paying taxes. Any federal gift and estate taxes due from the estate must be paid before the court will sign off on the closure of probate.
  • Transferring assets to beneficiaries/heirs. Finally, the EX/PR must prepare any legal documents needed to effectuate the legal transfer of the remaining estate assets to the intended beneficiaries or legal heirs of the estate.

The Pitfalls of Probate

Probating an estate can be a fairly simple and quick process, or it can be a complex and lengthy process. Much of the difference depends on the size and complexity of the estate; however, the person appointed as Executor or Personal Representative can also have a direct influence on the success, or failure, of the probate process. Some common obstacles to a simple probate include:

  • Filing of a Will contest
  • Complicated creditor claims
  • Inability to identify and/or locate heirs of the estate
  • Insufficient liquid assets to pay creditor claims
  • Insufficient assets to cover estate taxes

Because of the numerous problems you can encounter during the probate process, it is always best to consult with an experienced New York estate planning attorney if you are involved in the probate of an estate.

Contact Us

If you have any additional questions or concerns regarding the New York probate process, please contact the experienced New York estate planning attorneys at The Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.

  • Author
  • Recent Posts
Anthony Moccia
Anthony Moccia
Anthony Moccia is an attorney and partner at The Law Offices of Kobrick & Moccia.His practice focuses on estate planning and elder law.He is a member of the New York State and Nassau County Bar Associations.He frequently presents free seminars on wills & living trusts to area residents and his seminars are said to be “informative, entertaining & easy to understand.”
Anthony Moccia
Latest posts by Anthony Moccia (see all)
  • “Last Will and Testament” Origin - April 1, 2021
  • Do I Need a “Durable” Power of Attorney? - April 2, 2020
  • Joint Tenancy Pros and Cons - March 31, 2020

Filed Under: Probate

Other Articles You May Find Useful

Hauppauge probate attorneys
What Happens If an Estate Lacks Sufficient Assets to Pay All Claims
Harrison probate attorneys
Who Administers an Estate If There Is No Will?
Harrison probate attorneys
5 Reasons You Need an Attorney to Help You Probate an Estate
probate not necessary in New York
When Is Probate Not Necessary in New York?
Harrison probate lawyers
Probate Steps for the New Executor
Manson estate
Battle Over Control of Manson Estate Narrowed to Two

Primary Sidebar

Law Offices of Kobrick and Moccia

Download our free estate planning worksheet

There's a lot that goes into setting up a comprehensive estate plan, but with our FREE worksheet, you'll be one step closer to getting yourself and your family on the path to a secure and happy future.

  • This field is for validation purposes and should be left unchanged.

Follow Us

  • Facebook
  • LinkedIn
  • RSS
  • Twitter

Blog Subscription

  • This field is for validation purposes and should be left unchanged.

GARDEN CITY

1305 Franklin Avenue Suite 170
Garden City, NY 11530
United States (US)
Phone: (516) 248-9500
Fax: (516) 248-7606

HAUPPAUGE

150 Motor Parkway Suite 401 (Regus)
Hauppauge, NY 11788
United States (US)
Phone: (631) 941-3400
Fax: (516) 248-7606

HARRISON

600 Mamaroneck Avenue, 4th Floor
Harrison, NY 10528
United States (US)
Phone: (914) 701-0777
Fax: (516) 248-7606

MAP

kobrick_sidbr_map

Office Hours

Monday9:00 AM - 5:00 PM
Tuesday9:00 AM - 5:00 PM
Wednesday9:00 AM - 5:00 PM
Thursday9:00 AM - 5:00 PM
Friday9:00 AM - 5:00 PM

Footer

footer-logo
  • Facebook
  • LinkedIn
  • Twitter

The information on this Attorneys & Lawyers / Law Firm website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. The information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.

Kobrick and Moccia, Attorneys at Law. Privacy Policy | Contact Us | Disclaimer | Site Map | Powered by American Academy of Estate Planning Attorneys

Law Offices of Kobrick and Moccia
Attorney Advertisement
© 2023 American Academy of Estate Planning Attorneys, Inc.