The Westchester and Bronx Probate lawyers at Rogers & Rogers, Esq., are often the recipients of commonly asked questions regarding the probate process and what people like you might expect if your estate goes through probate. In order to provide better assistance to people, we’ve outlined the most frequently asked questions and provided answers to them that you might find helpful.
What Is Probate?
After a person dies, the probate process is a court proceeding through which the passing of the decedent’s assets and the settling of their taxes and debts is completed. During probate, the person who will be the executor of a will or who will administer the probate estate of those who died without a will is determined.
The Last Will and Testament will be put before the Court, the heirs and beneficiaries will be notified of the proceedings and the named Executor will seek to be appointed by the Surrogate Court. Then the executor will gather and inventory the assets of the estate, pay taxes, pay debts, and then distribute the assets according to the will or the state’s intestacy laws.
Are There Probate Exemptions So People Can Avoid Going Through Probate?
While some states do exempt estates up to certain amounts from having to go through probate, New York takes the approach of offering a simplified probate procedure for those estates in which a person has died leaving behind less than $30,000 in assets and no real estate.
Who Will Be Responsible for Managing a Probate Case?
If their is a will, the person you name as the executor of your will will be responsible for managing the probate process. If you die without a will, your spouse or children or parent will seek to have the court appoint them as the administrator to oversee the distribution of your assets and the payment of your taxes and debts. Where there is a Last Will and Testament the person named as executor will file the original Will, retain a probate attorney, notify government agencies about the death, manage the assets held in the estate, cancel the decedent’s credit cards, and start the probate process.
What Occurs During Probate?
During the process, which can last between approximately seven months after appointment by the Court and several years, several things will occur. The court will be provided with a copy of the will. The executor or administrator will complete an inventory of all of the estate’s assets. They will contact the decedent’s beneficiaries and heirs and creditors. They will also pay the debts and taxes owed. The estate’s executor may sell some assets in order to pay debts or to make cash distributions as written in a will.
What Types of Estate Planning Tools May be Used to Avoid Probate?
If your estate will be small enough to be eligible for the simplified probate procedure, it is unlikely you will need to plan to avoid probate. If, however, your estate will be subject to probate, there are several ways you can plan in order to avoid it, including:
- Revocable living trusts
Trusts do not have to go through the probate process. With a revocable living trust, a grantor transfers title to their assets to the trust. Upon their death, a named successor trustee will then pass the assets owned by the trust to the intended beneficiaries as outlined by the trust documents.
- Naming beneficiaries on certain accounts
It is possible to name beneficiaries on certain types of accounts. Upon death, the accounts will then transfer to the beneficiary. Examples include life insurance policies, transfer-on-death titles to vehicles and real estate, transfer-on-death bank accounts, and transfer-on-death ownership of securities.
- Owning real estate by tenancy by the entirety or joint tenancy
You may be able to avoid your real estate going through probate by titling it as either a joint tenancy or as a tenancy by the entirety. In a joint tenancy, the title to the real estate automatically passes to the named co-tenant. In a tenancy by the entirety, the decedent’s interest in the jointly owned property similarly passes to the other person, but it is available only to married couples.
Contact Westchester and Bronx Probate Lawyers
Many people want to avoid the expense and length of the probate process. If you believe your estate will be too large to qualify for New York’s simplified procedure, you may want to meet with an estate planning attorney to devise documents that will help you to do so. By taking advantage of all of the available estate planning tools, you may save your family the need of going through probate in your case along with the associated legal fees and expenses involved. You may also be able to get help with tax-planning to help your estate pass in the most tax-advantaged manner. The Westchester and Bronx probate lawyers at Rogers & Rogers, Esq. are available to help you with your estate planning needs, and they may be contacted for an appointment at (718) 994-1640.