Preserve Your Legacy

Estate Planning | Elder Law | Special Needs Planning



The process of probate in New York is a factor to consider when you are planning your estate. Estate planning is often equated to the execution of a last will. If you do utilize a last will as the legal device that will facilitate the transfer of your assets, these transfers won’t take place until the estate has been probated.


This post is about the drawbacks of probate in New York. Many things that have negatives also have positives, so we would like to look at the matter from a fair and balanced perspective. Along these lines we would like to touch upon the positives before we look at the drawbacks.

In the state of New York probate has become rather streamlined. Probate is not some type of nightmare. It is in place to provide certain protections. If you work with an estate planning attorney to arrange for the distribution of your property through the terms of a last will, the probate process may be a small bump in the road and nothing more.

Drawbacks of Probate

Even though probate does provide protections, there are some drawbacks. The Surrogate’s Court is the judiciary body that is involved in the probate process. The will must be admitted to probate to set the wheels in motion.

The court is going to determine the validity of the will. If anyone wanted to challenge the will, an argument could be presented during probate. As a result, there is a ready-made forum in place that provides a window of opportunity for challenges.

Some will challenges are completely valid. On the other hand, there are cases where disgruntled parties can’t accept reality. They can slow things to a standstill when they really don’t have a good case.

Short of a challenge that draws the process out considerably, there are many different tasks that must be undertaken during probate that are time-consuming.

The heirs to the estate do not receive their inheritances while the estate is being probated. This time lag that goes along with probate is one of the major drawbacks.

Another drawback of probate would be the expenses that are incurred during this process. There are numerous different costs that will typically accumulate.

The court will charge a filing fee, and the executor is entitled to payment. The executor will often call in a probate lawyer and a tax accountant. Of course these professionals charge for their time and expertise.

Property appraisals may be necessary, and liquidation concerns may be engaged. Other ad hoc expenses may present themselves as well.

In addition to time and money, the third and final drawback of probate that we would like to mention is the loss of privacy. Probate is a public proceeding. Anyone who takes the time to access court records can know exactly what went on during the probate process.