Probate is the legal process of “proving up” a Will in the state of New York. If you have never looked into the subject, you may assume that the executor that is named in a will can distribute assets to the inheritors without any government supervision. In fact, this is not the case at all.
A will is admitted to probate, and the Surrogate’s Court presides over the estate administration process. In this post, we will share five things that you should definitely know about probate.
It is time consuming.
The inheritors do not receive anything until the court has probated and closed an estate, and probate is a time-consuming process. If everything is simple and straightforward and there are no complications at all, it may take about eight months, but this is a best-case scenario.
This time leg is inconvenient at best, and it can cause genuine hardships for some people that need their inheritances sooner rather than later.
Probate is not free.
There are a number of expenses that accumulate during probate. The executor is entitled to remuneration for their time and trouble, and the court charges a filing fee. In many instances, the executor will bring in a probate lawyer and accountant, so there are professional fees as well.
Appraisals and liquidations will often be necessary, and there are charges involved. When you add in the incidental expenses that will be incurred by the executor, you are looking at a relatively significant amount of money.
It is a public proceeding.
If you are like most people, you do not share your personal financial decisions with anyone that has an interest. Privacy is important, but it is lost when an estate goes through probate.
It is a public proceeding, so anyone that is interested can access the records to find out how the resources were distributed. This is disconcerting in a general sense, and the information can sometimes cause hard feelings among people that were close to the decedent.
Probate opens a window of opportunity for disgruntled parties.
One of the tasks that the court will undertake is the “proving of the will.” The court determines the validity of the will, and if anyone wants to challenge the terms, they can come forward during probate.
On the one hand, this is a necessary safeguard, because there are legitimate estate challenges. This being stated, in other cases, people that are disgruntled will slow down an already lengthy process with challenges that stand on shaky or nonexistent ground.
Probate can be avoided.
The last thing that you should know about probate is the simple fact that it can be avoided so you can steer clear of these drawbacks. A revocable living trust is a very personal estate planning tool that is the ideal probate avoidance solution for most people.
With this type of trust, you maintain personal control over the assets that you signed over to the trust, because you would act as the trustee. After your passing, a successor trustee that you name in the document would distribute the assets to the beneficiaries in accordance with your wishes.
The probate court would not be involved, so the hassles would be avoided. This is one major benefit, but there are a number of others that we will look at in a future blog post.
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If you have already learned enough to know that it is time for you to work with a New York City estate planning lawyer to put a plan in place, we are here to help. When you choose our firm, we will work with you to develop a custom crafted plan that is ideal for you and your family.
You can send us a message to request a consultation appointment, and we can be reached by phone at 212-973-0100.