Suffolk County Probate Lawyers

Probate is the legal process during which the executor who you name is your will manages your estate and ultimately distributes your assets to your beneficiaries. Depending on the size and complexity of your estate and the terms of your will, probate can be lengthy and complicated. In order for the process of probate to begin a judge in the New York Surrogate's Court must first review your will to determine that it is valid and authentic. The way your will is drafted will have a great impact on how probate. Careful planning and drafting of your last will and testament will help ensure that your wishes are fulfilled and that probate is as quick and painless as possible. To help make sure that your estate is probated in the most efficient manner during such an emotionally challenging time, it is a good idea that you contact a Suffolk County Probate Lawyer to work closely with you as your draft your will to make sure that is clearly written, consistent with your wishes, and executed according to the requirements of New York Estate, Powers, and Trusts law.

The Probate Process

Probate is the legal process through which the executor of your estate winds up your affairs and distributes the assets of your estate according to the provisions of your will. If you do not leave a will, then your assets will be distributed through a process called estate administration.

In order to for probate to begin, your estate must be officially "opened." Typically this is one when your executor files paperwork with the New York Surrogate's Court in the county in which you lived at the time of your death. The petition will include a copy of your will and a copy of your death certificate. Around this time the executor will also notify known creditors and other interested parties of your death and their right to make a claim against your estate.

The Surrogate's Court judge will review the will to confirm that it was executed with the formalities required by New York law. NY EPTL § 3-2.1. For example, New York law requires that you as the testator sign the will at the end, or authorize another person to sign for you if you are unable. In addition, the signing of the will must be witnessed by 2 people. Once the Surrogate's Court judge is satisfied that your will was properly executed, the judge will issue an order admitting it to probate. At that point, your executor will be officially appointed and will have the legal authority to handle the affairs of your estate, including distributing its assets to your beneficiaries.

Problems during probate

The process for a will being admitted to probate is not always smooth. Because interested parties are notified when a petition is filed to admit a will to probate, any claimant, beneficiary or heir can initiate a will contest or estate litigation. For example, a family member may feel that you were unduly influenced or forced by another beneficiary into signing the will. Or someone may feel that you were mentally incapacitated at the time he or she signed the will. A will contest may also be based on allegations that the formalities of execution did not occur.

Ways to simplify or avoid probate

Probate can be lengthy and expensive. In the meantime the beneficiaries who want to receive your property and who may be relying on receiving it may suffering financially while they wait for your assets to be distributed. Whether it may not be possible to for your estate to completely avoid probate, there are ways to minimize the impact probate will have on your estate.

  • Transfer property to a trust. If during your lifetime your transfer property to a revocable living trusts, also known as a inter-vivos trust, the property that is placed in the trust is not subject to your will and is therefore exempt from probate. This means that once your pass away, this property will be distributed to your beneficiaries relatively quickly.
  • Set up payable-on-death accounts. A payable-on-death (POD) or transfer-on-death (TOD) account is usually a bank account or investment account that includes a designation that upon the account holder's death, the balance of the account is immediately transferred to the person named as the payee. POD and TOD accounts are quite simple to set up. In most cases all you need to do is complete a form indicating who the name of the payee.
  • Inter-Vivos Gifting. Any property that you gift during your lifetime will not be part of your estate upon your death. To avoid a gift tax, the law allows you to give up to a certain amount away each year per person with have to pay a gift tax.
  • Beneficiary designations. Certain property is not subject to your will as it passes outside of your will based on beneficiary designations. For example, the proceeds of a life insurance policy will go to the person you designate in the policy documentation. Similarly, the money in your IRA, 401(k) plan and other retirement accounts will go to the person you indicated on the beneficiary designation forms, regardless of what is in your will.
  • Use joint ownership. Property that you own jointly with another person with the right of survivorship will bypass the probate process. For example, if you hold your stocks, real estate, and bank accounts in joint ownership, when you pass away the title of that property will automatically pass to the surviving owner.
Consequences if You Do Not have a Will

If you do not to have a will when you die, New York will essentially write a will for you. This is not the preferred estate planning option. Under New York law, if you pass away without having a will, then you die "intestate." A court will then look to New York's intestacy rules to identify your legal heirs and to determine to what portion of your estate each heir is entitled. NY EPTL § 4-1.1. In leaving the fate of your estate up to intestate succession rules, you give up your right to select beneficiaries, name the executor of your estate, and designate a guardian for your minor children.

If you do not have a will, the individual that is appointed to manage your estate is referred to as an administrator. Oftentimes this person is your spouse or your child. However, the court could also appoint a complete stranger.

New York intestacy laws identify only spouses and select blood relatives as possible heirs. If, for example, you are survived by your spouse, but have no children, your spouse will receive your entire estate. If you are survived by both your spouse and your children, then your spouse will receive the first $50,000 of your estate and the balance will be divided between your spouse and your children, with your spouse receiving 50% and the children sharing the other 50%. Your children will share in 100% of your estate if you do not have a surviving spouse. There are also provisions for when parents, grandparents and other blood relatives will share in an estate. NY EPTL § 4-1.1.

Under the probate laws regarding intestacy, friends, organizations, and even certain blood relatives will not be able to inherit. Furthermore, blood relatives who you do not wish to share in your estate might receive a share if you die intestate. The best way for your wishes to be fulfilled is for you to have a will.

If you have minor children and the other parent is not available to take care for them, then someone must serve as a guardian for them if you die. While family members will likely provide input as to whom is named the legal guardian, the ultimate decision will be up to the court. Thus, it is possible for your children to become wards of the state and end up in foster care. This is a result that you do not want. If you have a will you can name exactly who you want to become your children's guardian. You can also name an alternate person in case your primary choice becomes unable to serve as guardian.

Despite efforts to avoid probate, inevitably there will be some property in your estate that is subject to your will that must go through probate. However, with careful planning, you can minimize the effect probate will have on your estate, and make it difficult for your will to be effectively challenged through a will contest or estate litigation. The attorneys at Stephen Bilkis & Associates, PLLC are experienced in representing estates in New York Surrogate's Court. We will help you make the process as simple and painless as possible under the circumstances. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

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