What is Probate?
When an individual dies with a will, his or her estate is settled by the executor named in the will through a process known as probate. Probate is a court supervised process that can be both time-consuming and costly, requiring extensive paperwork and tedious tasks. If you need assistance administering probate New York, you could benefit from speaking to Long Island probate attorneys from Davidov Law Group.
We can guide you through the process in the best way possible, helping you resolve any disputes that might arise. Probate is necessary when the decedent left a will as well as when he or she did not. If the decedent had only a trust with no will, then no probate is required. Sometimes a person will have both a trust and a will, and that will requires probate.
What is the Probate Process in New York?
There are specific steps that must be taken during New York probate. The process will vary somewhat depending on whether the decedent left a will that named a personal representative or executor, or whether the court will choose a personal representative. When a will exists, the process included:
- The validity of the will must be proven
- All the decedent’s properties and assets must be inventoried
- Properties that require appraisal will be appraised
- All debts and taxes will be paid by the estate
- Any disputes regarding creditors or beneficiaries will be resolved
- The remaining property will be distributed according to the instructions in the will
- The final tax returns for the decedent will be prepared and filed
If no will was left by the decedent, then the same basic procedure is followed, however, the distribution of the assets to heirs will follow New York probate law rather than being distributed according to the wishes of the deceased.
Risks Associated with Probate
As you engage in estate planning, you will likely hear talk about avoiding probate and may wonder why probate should be avoided. While probate has its benefits, when individuals fail to plan their estate properly, probate can have drastic consequences for their heirs in probate court. Family members may be forced to go through a potentially long, complex, expensive process to recover their inheritance. In certain circumstances, it may be impossible to recover your assets at all. Some of the more common risks associated with probate include:
- There may be family disagreements in court, whether you leave a will or not. If you have valuable assets, your heirs may quarrel over who will receive those assets in probate court. Probate can often bring out the very worst in people, and family arguments over who gets chat can result in long-lasting conflict. For this reason, you must ensure your estate has been carefully planned out in order to avoid these family disagreements.
- Probate is a public process. If you are a private person, you may not be on board with any interested party being able to read all the details of your estate. Everything about your estate, from the value of your art collection to the age of your beneficiaries is made public.
- Your chosen executor has much less flexibility to administer your estate during probate as the process is entirely controlled under New York’s state probate code. The executor is bound by these rules and laws which are not designed to maximize the ease of administration.
- Probate can be expensive. Most families will need to hire a probate attorney for the duration of the process, therefore, can be a drain on estate funds. Planning ahead can help spare your family these expenses related to probate.
- Probate is time-consuming, drawn-out, and complex. The probate court must identify and record all assets of the estate, then identify and notify creditors. Some of your assets might need to be liquidated to satisfy taxes and creditor claims. If there are any disputes, they will have to be settled prior to distributing the remainder to your estate. Each step can conceivably take months. The typical amount of time for a “simple” probate is about eight months. Many estate probates take considerably longer.
- If you die without a will, the individuals who receive your estate might not be the ones you would have chosen, as the law makes assumptions regarding who you would want to inherit your estate. As an example, if you and your spouse are in the middle of a nasty divorce when you die, that spouse might receive everything you own if you have no will (although your children might be entitled to a portion of your estate under New York probate laws). The point is that virtually nobody would want their divorcing spouse to receive even half their estate.
What Do Long Island Probate Attorneys Do?
Probate attorneys in New York take the burden of probate tasks from the executor, helping that person and the beneficiaries of the estate during the probate process. Probate lawyers do the following:
- Life insurance policies are located, and the proceeds are collected.
- All estate assets are identified and secured.
- Any real property that requires an appraisal is appraised.
- The debts and taxes of the decedent are paid.
- All paperwork required by the New York probate court is prepared and filed.
- If there are any income tax issues, they are resolved.
- The checking account for the estate is properly managed.
- The remaining assets are transferred from the decedent’s name to his or her beneficiaries.
- A final disbursement of assets is made to beneficiaries after all creditors and taxes have been paid.
Effectiveness in the New York Probate Process
There are some benefits to the process of probate, including:
- The probate process allows all creditors to be effectively “closed out” within 90 days. This means that any creditors who do not make a claim on the estate within that 90-day window will not be allowed to do so. As a comparison, assets held in trust have a two-year window during which creditors can potentially put a claim on estate assets to pay outstanding debts of the decedent.
- If you plan on challenging the validity of a creditor’s claim, probate court is the avenue to do so. You can potentially avoid having to pay any unnecessary debts out of the estate by challenging those creditors through probate court.
- Disagreements between family members regarding the validity of the will can be settled in probate court. Estate disposition issues can be sensitive, creating lifelong rifts, so in some cases, it is better to allow a neutral judge to settle any disputes.
What Are Some Common Issues Regarding Probate?
A significant number of issues commonly arise during probate. When issues arise, it is imperative that those involved seek the help of Long Island, NY probate attorneys from Davidov Law Group. We can provide legal representation to those facing probate problems such as:
- The named executor either does not want the role or cannot serve for some reason. An executor has a great deal of responsibility in managing assets and ensuring the named heirs receive their portion of the estate. Some people, once they see how much work is involved and the level of responsibility, may decline the role of executor. In other cases, the decedent may have named an executor who has since moved out of the area, out of state, or out of the country and is unable to serve. The named executor may be ill or have family obligations of their own, making serving as executor impossible. In this situation, the court will appoint an executor.
- There may be disputes regarding the actual value of the estate. Perhaps the decedent left her art collection to one child—an art collection that has since increased significantly in value. The other child was left the jewelry collection, but there is a great disparity in the worth of the art collection and jewelry collection, so there may be an ensuing dispute which must be solved in probate court.
- Someone asserts there is a newer will that supersedes the old will. If there are multiple wills, the court must determine which one is valid.
- Allegations may be made that the executor is failing to fulfill his or her fiduciary duties. Since this is the strongest obligation under the law, these assets must be managed carefully for the benefit of the estate and the beneficiaries.
How the Long Island Probate Attorneys of Davidov Law Group Will Protect Your Family and Preserve Your Legacy
Having learned a little more about probate and estate administration, you may be wondering whether it is possible to avoid it. The answer is yes. If you want to spare your family from having to go through a court process after your death, then talk to one of our attorneys about your options. We can discuss your concerns and help you find solutions that work for you. We are a family-owned firm that wants to help other families plan for their future. We are immigrants, and children of immigrants. Our parents sacrificed to provide a better future for us, and we are living proof of the American Dream.
We have an in-house Certified Financial Planner/Attorney who helps our clients plan holistically. Few firms that engage in estate planning have both the legal and financial expertise required, but our firm does. For more information, read our book, “Keeping it in Your Family—Protecting Your Family and Leaving a Lasting Legacy.” We build strong client relationships, ensuring we understand your goals prior to making recommendations. If you have questions or any questions related to estate planning, contact the Long Island probate attorneys at Davidov Law Group.