UNDERSTANDING THE NEW YORK PROBATE PROCESS

It Is Important that You Understand Why Probate Is Required and What Occurs During the Probate of an Estate in New York

It is all but inevitableat some point in your life, you will be involved in the probate of an estate. You might be named as the executor of a parents Last Will and Testament, or maybe you will volunteer to be the administrator when a relative dies intestate (without a will). If you manage to escape having an administrative role in the probate process, you will likely be a beneficiary or heir when a family member or loved one dies at some time in your life. Even if you avoid being involved in the probate of someone elses estate, your own estate will need to pass through probate when you die, making it important that you understand why probate is required and what occurs during the probate of an estate in New York.

WHY IS PROBATE REQUIRED?

The laws of the State of New York, as is the case in all other states, require most estates to pass through some form of probate or administration process when an individual dies for several reasons. First, the State wants to be sure that all of the

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property owned by the decedent is accounted for to ensure that taxes are calculated properly and assets are transferred to the intended beneficiary or heir. A secondary reason for the process is to provide creditors of an estate opportunity to file a claim and receive payment for valid claims from the estate before assets are passed on to the beneficiaries. In New York, very small estates may use an alternative to formal probate. If the decedent did not own any real property and the value of all estate assets is less than $30,000, a small estate proceeding may be used in lieu of formal probate. If the only asset left behind is real property and you are the rightful heir to the property, you may also be able to avoid formal probate. All other estates will be required to go through the formal probate or administration process.

TESTATE VS. INTESTATE

How an estate is addressed will depend, to some extent, on whether the decedent died testate or intestate. A testate estate is one in which the decedent left behind a valid Last Will and Testament, while an intestate estate is one in which the decedent died without a Will. In a testate estate, the terms of the Will dictate how estate assets are distributed. In an intestate estate, the intestate succession laws of the State of New York will determine who receives estate assets.

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WHO HANDLES THE PROBATE OF YOUR ESTATE?

When you create your Last Will and Testament, one of the decisions you must make is who to appoint as the executor of your estate. People often make the mistake of appointing someone as executor without giving the matter much thought. Once you understand the vast duties and responsibilities of an executor, you should understand why you need to give your choice of executor considerable thought. In the event that a decedent dies intestate, or without leaving behind a valid Will, an administrator will need to be appointed to oversee the estate process. An administrators duties and responsibilities are the same as those of an executor, with the only significant difference being that the administrator was not appointed by the decedent. Often, a family member or loved one will volunteer to be the administrator. If nobody volunteers, the court will appoint someone to fill the position. The generic name for either an executor or administrator of an estate is the personal representative, or PR. Unless the estate is very small and includes few assets, the PR will typically retain the services of an estate attorney to assist throughout the process. The process begins when the proper documents, including the decedents Will, when applicable, are submitted to the appropriate Surrogates Court.

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ESTATE ASSETS
The first order of business in the process is for the PR to locate, inventory, and value all of the estate assets. Depending on the size of the estate and how well organized the decedent was, this can be a relatively simple process or a daunting task. Everything from household furnishings to financial accounts to vacation homes must be accounted for and a date of death, or DOD, value ascertained. Often, the PR retains the services of professional appraisers to provide accurate DOD values. An inventory of the estate assets needs to be filed with the court within six months of the execution.

ADMINISTRATION-APPOINTED ESTATE CREDITORS

The PR is also responsible for notifying all potential creditors of the estate that the estate is being probated. For unknown creditors, this is accomplished by publishing the notice of probate in local newspapers. Creditors then have a specific period of time within which to file a claim against the estate. The PR is then required to review all claims filed and approve or deny each claim. Approved claims are paid out of estate assets. If a claim is denied by the PR, the creditor may appeal to the court for re-consideration. Uncle Sam is considered a preferred creditor of the estate. Before probate can be concluded and any assets transferred to beneficiaries or heirs, the PR must prepare and file both personal income taxes for the decedent and estate taxes for the estate itself, if applicable.

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ASSET MANAGEMENT

Throughout the estate process, the PR is required to manage and maintain estate assets. For some assets, this requires little time and attention; however, if the decedent owned real property, it can encompass a considerable amount of time and effort. Moreover, if the estate lacked liquidity, the PR may need to make decisions regarding which assets to sell to satisfy creditor claims. The PR will also be responsible for overseeing the actual sale of the assets.

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ESTATE LITIGATION
Sometimes an estate becomes involved in litigation during the court process. This can be something as small as a creditor who is unhappy with a claim decision or something as expensive and time-consuming as a Will contest. If a beneficiary or heir challenges the Will submitted to the court for probate, the PR must defend the Will. A Will contest can extend the amount of time it takes to probate an estate considerably because all other probate business essentially comes to a halt until the Will contest is concluded.

WINDING UP PROBATE
Eventually, after all assets have been accounted for, all creditors paid, and all litigation concluded, the beneficiaries or heirs of the estate will receive their intended gifts or inheritance. The PRs last duty will be to effectuate the legal transfer of the remaining estate assets to the beneficiaries or heirs of the estate. If you have specific questions about the probate of a New York estate or about your own estate plan, contact Simon & Gilman, LLP, experienced New York estate attorneys.

REFERENCES
NYCourts.gov, Frequently Asked Questions Pace University, Probate Law

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About Simon & Gilman, LLP

Simon & Gilman is the premier law firm in the Queens and New York Metro area. They have expertise in many areas of practice and can help you resolve legal issues that you are confronted with. ACCIDENTS We handle all types of injury cases, including automobile accidents, sidewalk and stairway, elevator, escalator, slip, trip and fall cases, bus, train and plane accidents, sporting activity accidents, snow & ice, defective products, medical malpractice, nursing home, hospital, school accidents, work and construction related accidents, and accidents involving New York City, New York State, and the U. S. Government. SOCIAL SECURITY DISABILITY Representing individuals who have applied for, been denied and refused disability benefits. We pursue all levels of appeal through the Hearing level, Appeals Council and, if necessary, to the Federal Courts CRIMINAL DEFENSE Representing individuals who have been arrested or about to be arrested, from violations to misdemeanors to felony charges, from arraignment through trial, if necessary including domestic violence, assault, shoplifting, driving while intoxicated (DWI), crimes against the person and/or property. WILLS/TRUSTS/ESTATES Representing you and your loved ones in the preparation of Wills, Living Wills, Trusts, Health Care Proxies, Powers of Attorney, and estate planning. Probate and Administration of estates; contested will proceedings and all phases of Surrogates Court actions. Arrangements can be made to come to your home or hospital if necessary to prepare any such documents. FAMILY LAW Though often emotional, your case is handled with sensitivity and compassion. Includes such matters as: annulment, divorce, separation, custody, visitation, support, adoption, prenuptial/post-nuptial agreements, paternity, Orders of Protection, name changes, Family Court & Supreme Court matters. REAL ESTATE Representing buyers and sellers in both residential and commercial matters, condominiums and cooperatives. Landlord/tenant matters involving non-payment, holdovers and unlawful occupancies.

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