If you’ve read anything about estate planning, you’ve likely heard the term “probate” at least once or twice. Probate is an important part of administering the estate of a person who has passed away, but it can be difficult to comprehend and even more challenging to actually navigate. Understanding the basics of the probate process can help you prepare for what will happen when a last will and testament is probated and what you can do to make the process more efficient and cost effective.
What Is Probate?
According to the American Bar Association, probate is “the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries.” Simply put, probate is when a court essentially says: “This will is valid.” However, the court will deny probate if the will was not properly executed, if it was revoked, if the person writing the will did not have capacity, or if the will was a product of fraud or undue influence.
What if a Person Dies Without a Will?
Although a will is a very important document to have, many people do not have a will in place. If a person dies without a will, the estate is subject to the laws of intestate succession, which dictate how a decedent’s assets must be distributed when no will exists.
The laws of intestate succession allow only certain relatives, such as the surviving spouse or the decedent’s children, to inherit the decedent’s assets. Partners who were not married, friends, and other people who are not related to the decedent will typically not receive anything. When a person dies without a will, the process is referred to as an administration proceeding. The terms “probate” and “administration” are sometimes used interchangeably and also can refer to the estate representative’s action after appointment such as collecting assets and making distributions.
What Happens During Probate?
During probate, the Surrogate’s Court is asked to appoint an executor to represent the estate. Upon appointment, the executor is responsible for gathering information about the decedent’s assets, income, and debts. The executor must then pay the expenses and debts of the estate before distributing the balance to the beneficiaries in the will.
The executor’s job is extensive. He or she has many responsibilities depending on the nature of the estate: Is there real estate to be sold? Is there rent to be collected? Are there tax returns to be filed? Assets or income to be found? These questions, and many more, are must be answered by the executor to ensure that the job is done properly. The executor has a legal obligation to fulfill his or her duties with prudence and diligence.
Uncontested Probate vs. Contested Probate
In some cases, probate of a will may be contested. There are five grounds for a will contest:
- The decedent lacked testamentary capacity at the time that the will was created. For example, the decedent may not have known what assets they had, who the beneficiaries are, or what the purpose of a will is.
- The will was not properly executed. For example, it lacked the signatures of appropriate witnesses or was not signed by the testator.
- The will was revoked. For example, if the testator destroyed the will or executed a new will.
- The will was procured by fraud or undue influence. These two similar bases for a will contest essentially mean that the testator did not execute the will by his or her own volition. For example, the testator was tricked or unduly pressured into naming certain beneficiaries.
If you suspect that a family member’s will is going to be challenged during probate, or you wish to challenge a will, it is imperative that you work with an experienced New York probate attorney. A veteran lawyer will give you the information and resources needed to present a strong case to the court.
Should You Try to Avoid Probate?
You may have heard of people engaging in estate planning so as to avoid probate. Some basics techniques allow an asset to be transferred upon death without the need for probate:
- An asset placed in a trust does not need to be probated;
- Life insurance policies with designated beneficiaries transfer directly to the beneficiaries; and
- Jointly held assets, like a joint bank account, transfer directly to the surviving owner.
Benefits of Avoiding Probate
The cost of probate can be high, especially when you factor in attorney’s fees. Probate can also be time consuming and lengthy, since it takes time to file the necessary documentation and navigate the court system. The process can become even lengthier if the will is contested. Probate is also a public matter, so decedents who wish to keep their assets and affairs private would benefit from avoiding the process altogether. This being said, probate is a manageable process that is often routine for an experienced attorney.
Drawbacks of Avoiding Probate
Although there are benefits to avoiding probate, there are also some caveats that must be considered. The up-front cost of setting up a trust is usually higher than the cost of setting up a will. Trust tax rates may create a larger tax liability. And additionally, there is no guarantee probate will be avoided completely.
How to Make Probate as Cost Effective & Efficient as Possible
Although the probate process can seem intimidating, there are ways to make it as cost effective and efficient as possible. The primary way of doing so is to work with an experienced New York probate attorney. There are few people who truly understand New York probate laws and how they can potentially affect individual estates. By working with a veteran estate lawyer with a solid track record in probate matters, you can minimize time and cost, and handle probate with confidence.