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THE NEW YORK PROBATE PROCESS Understand the New York Probate Process and Be Better Prepared to Create Your Own Estate Plan Which Will Someday Be Probated The Law Offices of Barton P. Levine www.bartonlevine.com

BARTON P. LEVINE NEW YORK ESTATE PLANNING ATTORNEY


Chances are great that at some point in your life you will be involved in the probate of an estate. You may be nominated as the executor of someone’s Last Will and Testament, appointed as the administrator of an intestate estate, or find yourself to be the beneficiary or heir of a decedent’s estate. Even if none of those scenarios come to pass, you should still have a basic understanding of the New York probate process so that you are better prepared to create your own estate plan which will someday be probated.

WHY PROBATE IS REQUIRED When an individual dies, he or she leaves behind estate assets. Those assets could be as simple as a few dollars in a bank account and some personal belongings or as complicated as a multi-million dollar empire with numerous different types of assets. In either case, the law wants to make sure that whatever assets are left behind by the decedent are transferred to the right person. The law also wants to ensure that creditors of the estate (including Uncle Sam) are paid. Finally, if the decedent left behind a Last Will and Testament, the law requires proof that the document purporting to be the decedent’s Will is, indeed, his or her Will. The probate process has evolved over the centuries to ensure that these concerns are addressed and resolved.

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TESTATE VS. INTESTATE ESTATES A decedent who executed a valid Last Will and Testament prior to death is said to have died “testate” whereas a decedent who did not execute a Will prior to death left an “intestate” estate behind. The distinction is important for several reasons. In a testate estate, the decedent’s Will, along with other estate planning documents, determines how the estate assets are to be distributed after death. In an intestate estate probate, the intestate succession laws of the State of New York will decide how the estate assets are distributed.

INITIATING THE PROBATE PROCESS When an individual dies one of the first things family members or loved ones typically do is search for a Last Will and Testament. If one is located, the individual named as executor under the Will usually initiates the probate process by filing a petition in the New York Surrogate’s Court in the county where the decedent was a resident at the time of death. Though the court ultimately approves the appointment, if an executor was nominated in the Will and is willing and able to serve, the court usually honors the decedent’s nomination. If no Will is located then a family member or loved one may step in to file the petition and request to be appointed as the administrator

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of the estate. Both roles (executor and administrator) include the same duties and responsibilities – the only real difference is how the individual comes to be appointed. The job of the executor/administrator is to oversee the entire probate process. Depending on the size and complexity of the estate, the duties of ●

The individual you appoint as executor serves not only as the executor of your Will, but as the executor of your entire estate in most cases. In other words, your executor does not simply read your Will to beneficiaries and walk away. Instead, your executor is typically in for months, even years, of work after your death. ●

the executor/administrator can be minimal or extremely time consuming and complicated. Because the probate process frequently involves complex legal issues from various different areas of the law an executor/administrator usually retains the services of trusts and estates attorney to assist during the probate process.

BENEFICIARY OR HEIR? When a Will was left behind, the individuals or entities receiving bequests under the Will are referred to as “beneficiaries”. When the estate is an “intestate estate”, anyone who has a legal right to inherit under the laws of the State of New York is referred to as an “heir”. In an intestate estate proceeding, the court will have

to legally determine who the heirs are of the estate, adding another step in the probate process.

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ESTATE ASSETS Once the probate process has begun, the executor/administrator must immediately locate all of the estate assets. Once located, the assets must be inventoried and valued. How this is accomplished will depend on the asset. Real property, for example, may be valued by obtaining a date of death appraisal from a licensed appraiser. Financial accounts, retirement funds, and investment accounts may be valued by looking at statements from the date of death. Personal property may need to be appraised by a professional estate appraiser. Ultimately, the executor/administrator must create an inventory of all assets, along with values, to submit to the court.

CLAIMS AGAINST THE ESTATE Shortly after the probate has been opened, legal notice must be given to all potential creditors of the estate. This is accomplished by publication in local newspapers. Creditors then have a specific amount of time within which they must file a claim against the estate for a debt owed by the decedent. The executor/administrator then reviews those claims and either approves or denies them. Approved claims are paid out of estate assets. A creditor has the option to litigate a denial in court if a claim is denied.

CHALLENGES TO THE ESTATE Sometimes, a beneficiary, heir, or other interested person will file a challenge to the Will. Typically referred to as a Will contest, this challenge alleges that the Will submitted for probate is not valid. A Will contest must be based on something more than the simple fact that a beneficiary or heir is not happy with what he or she received (or didn’t receive) under the

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terms of the Will. Instead, a Will contest must allege that the Will was signed under duress, the testator did not have the requisite capacity, fraud was involved, or other similar allegations. The executor/administrator must defend the Will in court if it is challenged. If the court ultimately declares the Will to be invalid then the court will look to a previously executed valid Will to probate the estate, if one exists. If no previous Will exists, the estate will be probated as an intestate estate.

TERMINATING PROBATE After all estate property has been inventoried and valued, all creditor claims addressed, and all challenges to the Will litigated, the executor/administrator must prepare and pay any unpaid personal taxes, if any, and estate taxes due at the state and federal level. A final report is then filed with the Surrogate’s Court. Once the court reviews and approves the final report, the executor/administrator will then effectuate the transfer of all remaining estate property to the intended beneficiaries or heirs of the estate.

ALTERNATIVES TO FORMAL PROBATE New York offers a simplified alternative to formal probate for small estates. An “Affidavit of Voluntary Administration”, commonly known as a “small estate affidavit” may be used if the decedent left behind $30,000 or less in personal property, and either owned no real property or owned real property jointly with someone else and there is no plan to sell the property. If the estate is eligible for simplified probate, it will dramatically decrease the amount of time the probate process takes, as well as the costs involved.

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If you find yourself involved in the New York probate process at some time in your life, chances are you will have unique questions. No two estates are the same, meaning that while a general understanding of the process is certainly beneficial, you should consult an experienced New York State trusts and estates attorney for specific advice.

REFERENCES New York Courts, Probate Proceedings New York City Surrogate Court, Frequently Asked Questions New York Court Help, Small Estate Affidavit Program New York Life, Overview of the Probate Process

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About the Author Barton P Levine For more than 30 years, Bart Levine has been the principal member of the Law Offices of Barton P. Levine. Mr. Levine specializes in estate planning, probate and estate administration, bankruptcy representation, special needs planning, medicaid planning, guardianship representation, elder law representations and real estate representation. Mr. Levine presents free educational seminars to the public throughout the greater New York City metropolitan area. These seminars are intended to educate the public about the importance of proper estate planning. Seminar topics include Basic Estate Planning, Asset Protection, Special Needs Planning, Medicaid Planning, Estate Planning for the GLBT Community, IRA Planning and many others. Mr. Levine also presents continuing education courses to the professional community. Experience Mr. Levine has been a member of the New York and Florida Bars since 1974. Mr. Levine is also admitted to practice law before the federal courts of the Southern and Eastern Districts of New York. Mr. Levine is a member of the New York State Bar Association, Trusts and Estates Division, and a member of the American Academy of Estate Planning Attorneys (AAEPA). Law Offices of Barton P. Levine www.bartonlevine.com 260 Madison Avenue, 17th Floor New York, NY 10016 Phone: (888) 268-4425 Fax: (212) 268-6267

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The New York Probate Process  

Chances are great that at some point in your life you will be involved in the probate of an estate. You may be nominated as the executor of...

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