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WHAT ARE THE

DRAWBACKS OF PROBATE IN NEW YORK? You Should Understand a Bit about Probate in New York When You are Making Estate Planning Decisions

ILANA F. DAVIDOV, ESQ. MICHAEL DAVIDOV, ESQ., CFP速 NEW YORK ESTATE PLANNING ATTORNEYS


This paper is about the drawbacks of probate. Before we look at these drawbacks, we would like to emphasize the fact that probate is not an inherently negative thing. The state of New York does everything possible to provide an efficient and streamlined process. This having been stated, you should understand a bit about probate when you are making estate planning decisions.

THE LAST WILL & PROBATE Let's look at a hypothetical example. You maintain direct personal possession of your property throughout your life. Your estate plan consists of a last will as a vehicle of asset transfer. In the will you express how you want your remaining assets distributed after you die. When you create your will, you name an executor who will administer the estate. When you die, the executor is not going to immediately look at the will and follow the instructions on his or her own without supervision. The executor is going to be required to admit the will to probate. In the state of New York, the Surrogate's Court handles probate matters. During

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probate the validity of the will is determined by the court. Final debts are paid. The assets that comprise the estate are then prepared for distribution to the heirs according to your wishes as stated in the will.

THE DRAWBACKS What are the drawbacks of probate? For one thing, the process of probate does not run its course overnight. The exact time line will depend on the circumstances. Relatively simple and straightforward cases will pass through probate in a matter of months. More complicated cases can take multiple years. The heirs to the estate that are named in the will are not going to receive their inheritances until the estate has been probated. For some, this is an inconvenience. Other people can experience hardships because they relied on the decedent on a day-to-day basis for financial support. In addition to the time consumption that comes along with the process, probate can be costly. There is a filing fee, and the executor is paid out of the estate's assets. In many cases the executor will call in a probate lawyer and an accountant. To prepare the assets for distribution to the heirs, appraisals and liquidation of property may be necessary, adding to the costs.

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Thirdly, privacy is lost during probate. Probate records are available to anyone who wants to know how you decided to distribute your assets.

FACILITATING PROBATE AVOIDANCE We are not flatly recommending avoidance of probate. However, you should be aware of all your options when you are planning your estate.

For one thing, the process of probate does not run its course overnight. The exact time line will depend on the circumstances. Relatively simple and straightforward cases will pass through probate in a matter of months.

There are numerous different ways that you can arrange for the distribution of your monetary resources to your heirs. You are not confined to any one course of action. You may find that a vehicle of asset transfer that enables probate avoidance is more appealing to you than a last will. You can explore all of your options by discussing everything in detail with a licensed estate planning attorney. Probate is not the only thing to take into consideration. During the consultation you may become aware of other relevant factors that you never considered.

REVOCABLE LIVING TRUSTS If you do speak with an attorney, you will learn about revocable living trusts. When you create a revocable living trust, you are known as the grantor. The grantor names a trustee to administer the trust, along with beneficiaries who will

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receive monetary distributions out of the trust. The grantor of a revocable living trust will typically serve as the trustee and the beneficiary initially. As a result, you do not lose control of the assets that you have conveyed into the trust. You name successors to assume these roles after you pass away. After your passing, the trustee will distribute resources to the beneficiaries in accordance with your wishes as stated in the trust agreement. These distributions will take place in a timely manner outside of probate.

CONCLUSION In summary, probate is a factor when you pass away while in direct possession of personal property. The heirs to your estate will not receive their inheritances until the estate has been probated and closed. Probate is not to be viewed as something that is negative. The state of New York provides an efficient and streamlined process.

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However, there are some inherent drawbacks that cannot be avoided. Probate is going to take some time, and costs will accumulate during the process. Privacy is lost during probate, because the goings-on are a matter of public record. If you choose to do so, you could facilitate the transfer of your assets outside of probate. The best way to become apprised of your probate avoidance options would be to discuss them in detail with a licensed estate planning attorney.

REFERENCES Forbes http://www.forbes.com/sites/janetnovack/2012/10/14/the-forbes-guide-toestate-planning/ Nolo http://www.nolo.com/legal-encyclopedia/free-books/avoid-probatebook/chapter0-4.html

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About the Authors Ilana Davidov and Michael Davidov Ilana Davidov, Esq. and Michael Davidov, Esq., CFP®, are partners in the law firm of Davidov Law Group, P.C. Their areas of expertise include estate planning, elder law, Medicaid planning, tax law, trust and estate administration, as well as estate litigation. Together they have represented hundreds of families, creating their estate plans and helping them navigate long-term care and tax issues. Ilana Davidov has been practicing law for over a decade. Her varied professional career includes a position as a former Court Attorney for the New York State Supreme Court, Appellate Division. She has served as counsel to a Long Island firm where she practiced in the areas of estate planning and real estate. Over the years, Mrs. Davidov’s experience has included serving as legal counsel to a title agency, several real estate developers, and representing over 25 lending institutions. Today, clients turn to Mrs. Davidov to help preserve their legacies and plan for the future. Michael Davidov works as an advocate for seniors and their families, executors, trustees, and beneficiaries. He practices before the Surrogate Court, Supreme Court and before Administrative agencies in matters relating to guardianship proceedings, will contests, fiduciary misconduct actions, accounting proceedings, kinship trials, proving the rights of non-marital children, Medicaid fair hearings and Veteran’s benefits eligibility. Mr. Davidov is an accredited attorney with the Veteran’s Administration since 2008, and is also a Fellow of the American Academy of Estate Planning Attorneys. Adding further to his list of accomplishments, Mr. Davidov holds a designation as a Certified Financial Planning™ Professional. He was selected as a “Super Lawyer” to the 2013 New York Metro Rising Stars List, has been designated as a “King of Queens.” Both Ilana and Michael Davidov are regular lecturers at public and private workshops, as well as contribute articles and interviews on topics relating to estate planning and elder. They are members of the American Academy of Estate Planning Attorneys, and the New York State and Queens County Bar Associations. They are both fluent in Hebrew and Russian. Davidov Law Group www.davidovlawgroup.com 80-02 Kew Gardens Road, Suite 605 Kew Gardens, NY 11415 Phone: 718-793-7000 Fax: 718-793-7222

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What Are the Drawbacks of Probate in New York?