and Your Family
Suffolk County Probate
Probate is a process that a deceased person’s estate must go through before the assets in the in estate can be distributed to the beneficiaries. During probate the Surrogate’s Court officially appoints the executor to manage your estate. The executor will also be the person who distributes the property in the estate to the beneficiaries. Probate is a process that you want to avoid. It can take a long time and it can be expensive. The length of time it takes depends on the size of the estate and its complexity. The first step in probate is for the Surrogate’s Court judge to review the will to determine its validity. To help ensure that a will is admitted to probate without delay it is critical that the will is well drafted by an experienced Suffolk County probate lawyer. Objections to probate are often due to poor drafting, incorrect execution, and poor management of challenging family dynamics. Careful planning and drafting of your last will and testament will not only help ensure that probate is as problem-free as possible, it will also help ensure that your wishes for how your estate should be distributed are fulfilled. 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 at the Law Offices of Stephen Bilkis & Associates to work closely with you as you 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, sometimes referred to as probate administration, is the process of proving the validity of someone’s will. Once the will is “proved,” the administration process can begin. If you do not leave a will or if your will is determined to be invalid then your assets will go through a process that is similar to probate administration, but is referred to as estate administration.
The first step in probate is for someone, generally the named executor, to petition the court to open the estate. The petition for probate must the original will and a copy of the death certificate. Before admitting the will to probate the judge will review it to make sure that it meets the requirements of New York probate law. For example, New York law requires that the person who makes the will sign it at the end. In addition, the signing of the will must be witnessed by 2 people. Once the judge is satisfied that your will is valid and that it was properly executed, the judge will allow it to be probated. This means that the person who you named in your will to be your executor will be legally able to act as your executor and move forward with the necessary steps to settle your estate and ultimately distribute your assets.Problems during probate
The process for a will being admitted to probate is not always problem-free. When a probate petition is filed with the Surrogate’s Court, it will include the names and addresses of all interested parties including beneficiaries and family members. Creditors are also notified. As result, if someone believes that the will should not be probated, then he (or she) can show up at the probate hearing at the Surrogate’s Court and file an objection to probate.
Other common problems during probate include:
- Large creditor claims. While it is not uncommon for creditors to file claims against an estate, large claims can present significant problems. Executors are required to pay from estate asset legitimate creditor claims. If a claim is large or if the cumulative amount of claims is large, there may not be enough property in the estate to pay all claims and to pay all bequests. It is up to the executor to pay claims based on statutory requirements. On the other hand, the executor must also defend the estate against claims that are not valid.
- Executor mismanagement. Mismanagement of estate assets and other poor behavior on the part of the executor can wreak havoc on the probate administration process and the value of the estate. Upon petition, the Surrogate’s Court will investigate allegations of wrongdoing on the part of the executor and has the authority to remove an executor who is failing to properly fulfill his (or her) obligations to the estate.
- Missing assets. If there are assets that should be part of the decedent’s probate estate that the executor cannot locate, the administration process may be extended as the executor tries to find all of the estate assets that must eventually be transferred to new owners or used to pay creditors. Sometimes this happens because a family member or friend has borrowed the property or is storing it. In other cases the property has been lost, destroyed, sold, or given away and is no longer part of the estate.
- Assets in multiple states. If the decedent has assets in jurisdictions other that New York, probate may have to be initiated in the other states as well. Contact an experienced Suffolk County probate lawyer who can advise you how probate must be handled in such a situation.
Because probate can be expensive and lengthy, it is a good idea to take steps to avoid, minimize the assets that are subject to probate, or make sure that it is as uncomplicated as possible. The best strategies include making sure few assets are in your probate estate and to make sure your will and other estate documents are well-drafted.
Strategies that help make sure assets are passed outside of your will and therefore avoid probate include:
- Setting up one or more trusts. If you transfer property to a trust during your lifetime that property will pass to beneficiaries outside of your will. This means that your beneficiaries will be able to access the assets a lot more quickly.
- Setting up payable-on-death accounts. A payable-on-death (POD) or transfer-on-death (TOD) account is a financial account such as a bank or investment account that is set up so that upon your death the POD or TOD person who you designate is immediately made the owner of the money or other assets in the account.
- Inter-vivos giving. Give away property during your lifetime. If the property is not owned by you at the time of your death it is not part of your probate estate.
- Beneficiary designations. Property that allows beneficiary designations will go to the person you designate upon your death. For example, the money in your 401(k) r IRA will immediately go to the person you designate without having to go through probate.
If you do not write a will when you pass away your assets will be distributed to your heirs based on New York's intestacy rules. NY EPTL § 4-1.1. In other words, New York will essentially write a will for you. Instead of you deciding who will get your assets, who will get which assets, who will be your executor, and who will be the guardian of your children, New York will decide for you.
However, as an experienced probate attorney in Suffolk County will explain, absence of a will is not an effective way to avoid a lengthy administration process. In fact, not having a will will guarantee that your probate property will be subject to court supervised administration.Contact the Law Offices of Stephen Bilkis & Associates
Even if you take steps to avoid probate, the probability is high that some of your property will remain in your probate estate at the time you pass away. In order to makes sure that no more than a minimal amount of your assets will be subject to probate, it is important that you work closely with an experienced probate attorney serving Suffolk County. The attorneys at the Law Offices of Stephen Bilkis & Associates 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 case. We represent clients in the following locations: Queens, Suffolk County, Bronx, Staten Island, Brooklyn, Manhattan, Long Island, Nassau County and Westchester County.