Over the years we have come across clients who get so overwhelmed with the probate process, the process of validating the will and transferring the assets of a loved one who has passed. This process can be made even more difficult because this is usually a sad time, so we’ve made it easier to understand through these simple 5 steps below. It should be noted that the probate process is also always a matter of public record and so anyone can access the details of a probate case.

1. Filing the probate petition.
   The original will and a certified copy of the death certificate with the probate petition and other supporting documents must be filed in Nassau County Surrogate’s Court. There is a filing fee based on the size of the estate. Click here to view  full filing fee schedule

 

2. Give notice.
   The person who is in charge of the process, usually an Executor, will mail a notice that the estate is in probate to all creditors, beneficiaries, and heirs. This is a court requirement. Note that the notice can be published in a local newspaper.

3. Inventorying the property.
   The executor must collect the decedent’s belongings and have them appraised as necessary.

4. Paying outstanding debts and taxes.
   This includes mortgage payments, home equity loans, income taxes, property taxes, and other applicable accounts. If the estate does not have enough cash on hand to repay the obligations, assets may need to be sold.

5. Distributing Assets
   After all the debts are settled, the remaining assets are distributed according to the decedent’s desire as stated in his/her will. The distributes (the legal term for the heirs to the estate) are listed in the initial probate petition. They are served with a notice, formally called a citation, that requires them to submit to the jurisdiction of the Surrogate’s Court.

The precise rules governing probate in New York are set forth in The Surrogate’s Court Procedure Act (SCPA) and The Estates Powers and Trust Law (EPTL). The probate process is a matter of public record under state law.

Is Probate Really Necessary?

Generally, probate assets are those which are solely owned by the deceased and do not have a stated beneficiary – someone who that asset would pass This includes individual bank accounts, solely owned homes, cars, jewelry, art, cash, and antiques.

Non-probate assets include:

• Assets held in trust
• Bank accounts with a named beneficiary
• Retirement accounts, like a 401k and IRA
• Life insurance policies with a named beneficiary
• Jointly held savings, checking, and brokerage accounts
• Jointly held real property like a house
• Vehicles with a named 2nd Owner

Probate may not be necessary if:

• The value of estate is less than $50,000 – In New York, a small estate or voluntary administration proceeding can be filed as an alternative to probate if the decedent had less than $50,000 of personal property either with or without a will.
• There are no probate assets. If a person’s estate consists solely of non-probate assets, there is no need for the probate process.
• An estate plan was created to avoid probate. Individuals with a moderate to high net worth often take steps to prepare an estate plan that avoids probate as a way to simplify the distribution of assets to their heirs.

A Few Definitions

Letters of Testamentary – The legal documents giving a person the authority to act as the executor are called letters testamentary. The executor is allowed to be paid a commission for the time and effort required to distribute the estate. The commission is determined based on the size of the estate.

Executor – An executor of estate is the person responsible for carrying out the deceased’s wishes as laid out in their will, such as distributing assets to beneficiaries.

Intestate – When a person dies without a will, they are said to have died intestate. A family member or friend will need to petition the court for the right to act as Administrator unless probate is not necessary.

Administrator – An administrator is appointed by the probate court when there is no will (the deceased died “intestate”), or the named executor is unable to serve for any reason.

Probate – The legal process through which a court reviews, validates and carries out the terms of a will.

Heir – Someone who inherits property by statute.

Beneficiary– Someone who inherits property or assets through a will.

 

Disclaimer: We are not attorneys and therefore we are not offering legal advice. 

My team and I can assist you with clean outs, removal of household items, estate sale, winterizing, landscaping, home maintenance and any other non-legal tasks that will help to lighten the load as you go through the probate process. Give us a call at 516-300-2427 or send an email to smbizsol@gmail.com.