Page 1

THE PROBATE PROCESS What You Can Expect If You Find Yourself Facing the Probate Process for A Loved One or If You're Wondering WhatMight Be in Store forYour Loved Ones if You Die Without a Will

The Probate Process

www.kobricklaw.com SAUL KOBRICK

1


Probate is expensive, time consuming and really, an all around heavy burden for loved ones in the grieving process. Making things worse, it's sometimes difficult to understand. Each state has its own laws that must co-exist with federal guidelines. Here's what you can expect, though, if you find yourself facing the probate process for a loved one or if you're wondering what might be in store for your loved ones if you die without a will. If there's one thing we, as estate planning lawyers, tell our clients – probate is unpleasant and the timing is never right; after all, a death must occur for probate to become necessary. But it's also not the life-shattering and exhausting process some make it out to be. The right attorney can make all the difference. In short, probate is about passing one's estate to the legal heirs or those named in a will. It addresses only the property or assets owned solely by the deceased. Any kind of joint property is not part of the process. Those assets might include living trusts, homes, cash, retirement accounts or others. Probate can sometimes take as long as a year to wrap up- it can extend far longer than that, though. Remember that each state has its own laws – though in many ways, they're quite similar. Also, what follows below is a rough outline of the process; these are general and your experience will be unique to your own situation.

KICKING OFF PROBATE The first thing that happens in the probate process is the filing of the will. If there's no will with a named executor, the court will attempt to locate and verify

The Probate Process

www.kobricklaw.com

2


the next of kin to serve in the role of administrator (more on that a bit later). In most states, any person over the age of 18, who hasn't been convicted of a felony, can be named executor or administrator of a will. Some people choose a lawyer, accountant or financial consultant based on their experience while others prefer their spouses, an adult child, a close friend or other relative to fill this role. In some instances, depending on the estate, it can be a bit demanding, so be sure to discuss it before naming anyone to that role. Next, the assets are secured and properly inventoried. This list will also become part of the probate court process. Along with the assets, there must be an inventory of the creditors who are owed and other debts must be addressed as well. Opening a new checking account (versus continuing with the same one the

The Probate Process

www.kobricklaw.com

3


deceased used) will allow the administrator to use the estate as the account holder. All bills, taxes and other debts will be paid from this account, thereby ensuring accurate documentation. This is absolute crucial and any mistakes will surely drag out the probate process even further.

FEDERAL CONSIDERATIONS Federal taxes might need to be filed, depending on the state and tax exemptions in place. In most states, there's a nine month window in which to file the return. Failing to do so can result in big penalties for the estate. That said, as is custom with the IRS, you may be able to file an extension provided the deadline hasn't passed. You may be required to pay an estimate of what will ultimately be the total. This is yet one more reason why a probate lawyer is so important. Finally, and after all of those obligations have been met, the administrator will then kick into distribution mode. All of the heirs and and others named in the documents are bequeathed, per the deceased's wishes. Keep in mind, though, this final step won't likely be allowed until a certain time passes that will allow creditors to lay potential claims to the assets of the estate. The last responsibility for the administrator is filing a final report with the probate court. It should include income, expenses, distributions and a final remaining small balance that might still be in the checking account. Probate can be avoided in many instances. By setting up trusts or keeping everything in a joint ownership status can often allow you to bypass probate.

The Probate Process

www.kobricklaw.com

4


Again, you'll want to speak with an estate planning lawyer to ensure you're in compliance with both state and federal laws. That said, you must also keep in mind that the estate will have to be liquidated. Bills and debts must be reconciled too.

THE ROLE OF THE WILL A will doesn't have to be a 50 page document loaded with legal terminology; it can be a simple declaration that tells witnesses where you would like to leave your assets. Whether it's a charity or your third grade best friend – a will ensures the funds go right where you want them to. Remember, the absence of a will is a sure fire way of your estate making it to probate. Don't underestimate the power in covering the bases and assuming nothing. Further, take your lawyer's advice and review your estate plan on a regular basis. Consider how many changes we go through over the years. Your wealth my change, you may move, marry, divorce, have a child – any number of life's shifts is cause for giving your will a once-over. It's an hour of your time that's always going to be well-spent.

The Probate Process

www.kobricklaw.com

5


About the Author Saul Kobrick Saul Kobrick is an attorney licensed to practice law in the State of New York and the owner and founder of The Law Offices of Saul Kobrick, P.C. Mr. Kobrick is licensed to practice law in all courts of New York State, as well as in the Federal District Courts for the Southern and Eastern Districts of New York. He is a member of the New York State, Nassau, and Westchester County Bar Associations as well as a member of the American Academy Estate Planning Attorneys. Mr. Kobrick is also a member of the National Academy of Elder Law Attorneys. Experience Prior to founding his Garden City Law Firm in 1992, Mr. Kobrick has for many years, practiced law both as a Sole Practitioner, and in partnership in New York City. His work has always included business law, wills, trusts and estate planning. A Suffolk County Branch of the firm was added in January of 1998, and a Westchester County Branch of the firm was added in August of 1999 providing quality Estate Planning and Elder Law services to residents of Nassau, Westchester and Suffolk Counties.

Law Offices of Saul Kobrick, PC www.kobricklaw.com GARDEN CITY 1305 Franklin Avenue Suite 170 Garden City, NY 11530 Phone: 800-295-1917 Fax: (516) 248-7606 HAUPPAUGE 235 Brooksite Drive Hauppauge, NY 11788 Phone: (631) 941-3400 Fax: (516) 248-7606 HARRISON 600 Mamaroneck Avenue 4th Floor Harrison, NY 10528 Phone: (914) 701-0777 Fax: (516) 248-7606

The Probate Process

www.kobricklaw.com

6

The Probate Process  

Know what you can expect if you find yourself facing the probate process for a loved one or if you're wondering what might be in store for y...

Read more
Read more
Similar to
Popular now
Just for you