When a loved one dies, it is common to start asking questions about their estate. While it is recommended that every individual have a Last Will & Testament, in many cases, simply having a Will does not mean that probate is necessary.
What is Probate?
Probate is the legal process, wherein, after notification to certain interested parties, a Court makes a legal determination that the writing before the Court is in fact the Will of the decedent. As part of that adjudication, the Executor nominated by the decedent, is also appointed by the Court. Once the Will is admitted to probate, the appointed Executor must now, after payment of administration and funeral expenses, debt and taxes, distribute the net estate as provided in the Will.
What is an Administration?
The State of New York has a procedure for the administration of assets of a decedent in a small estate. Under New York law a small estate is defined as that of a decedent who dies leaving personal property having a gross value of Thirty Thousand and 00/100 ($30,000) Dollars or less. Use of the procedure for administration of a small estate can be accomplished very quickly and at a significant savings in cost. A careful review of the assets from the beginning will determine if use of the small estate procedure is available in your circumstances.
What are Non-Probate Assets?
The decedent’s estate may consist solely of what are called non-probate assets. Non-probate assets, as the name implies, does not require probate of the Will. It is possible for the estate of an individual to consist of nothing more than non-probate assets. For example, the estate may consist of bank accounts in the joint name of two (2) persons payable on death to the survivor or perhaps there is a policy of life insurance payable at death to a person named in the policy as beneficiary. For the bank account, the presentation of a death certificate for the deceased joint owner will be sufficient to have the account now titled to the survivor. As for the life insurance policy, the beneficiary must file a claim with the company to receive the payment of the death benefit. No court intervention is needed.
Do I Need an Attorney?
While many people are nervous about hiring an attorney, an attorney may be able to save you and your family money. Before the attorney will file a Petition with the local Surrogate’s Court to probate the Will, the attorney must determine if the decedent left assets which require probate. It is the responsibility of the attorney to meet with the client, likely the named executor, and have the client produce information concerning what assets the decedent owned, their current value, and how each asset was titled. Careful review of the decedent’s assets by the attorney and named executor, at the outset, will prevent petitioning for probate of a Will where it is not necessary.
In summary, taking the additional time at the outset to carefully review the decedent’s records to locate deeds, recent bank and brokerage statements, recent tax returns, insurance policies, annuities and any other relevant information; and bringing that information to the initial meeting with the attorney will save time and expenses for the estate.
This article is intended for general informational purposes only and should not be considered legal advice or counsel, nor does it create an attorney-client relationship.
Robert D. Schultz is an attorney focused on practicing Estate Planning, Estate Administration/Probate, Estate Litigation and Elder Law. He advises his clients during their lifetimes on estate and tax planning and assists their families with estate administration, probate, and settlement, including trust administration, business continuation, and asset transfers. Bob can be reached at firstname.lastname@example.org or (585) 672-5500.