A complex procedure known as probate entails the selection of an estate representative (such as an executor), collecting the decedent’s assets, and distributing those assets to the appropriate parties.
Being the executor of an estate carries a lot of responsibilities and demands a lot of time and work. Although probating a will can be difficult, it becomes more manageable in stages.
A person’s estate and assets may not be automatically allocated to beneficiaries upon death just because they have a will. Similar to other states, New York requires the will to go through the probate procedure to start the distribution procedure.
The person designated as the executor in the will often handle this. This individual will start the probate process and manage its overall execution throughout the procedure. They might be in charge of things like categorizing assets, designating beneficiaries for distribution, and taking care of taxes or unpaid debt.
Which Assets or Accounts in New York Are Exempt from Probate?
While the probate process must be followed for most of a person’s assets, there are certain ways to bypass it. Given that the probate process can take a lot of time and money, this might be beneficial for the surviving family members and friends. The following items or accounts are exempt from New York’s probate laws:
- Accounts that are payable on death: Beneficiaries can frequently obtain funds from these accounts without going through the probate court.
- Property that transfers upon death: This category includes a wide range of assets, including securities and automobile titles.
Filing a Claim for Probate
Petition filing is the first step, and the Surrogate issues a decree at its conclusion. The decree names the person named as executor to act on behalf of the estate and admits the will to probate (validates the will).
Petition and Related Documents
In the county where the deceased was a resident on the day of death, a Petition for Probate must be submitted. The original last will and testament, death certificate, and filing fee must all be submitted with the petition. Depending on the situation, more affidavits and supporting papers may be needed.
Probate Proceeding Notice
Notice of the probate action must be given to all essential parties. The Surrogate’s Court must issue any decree for it to have jurisdiction over certain interested parties (via notice).
The people who must receive notice depend on the situation, but they almost always include the heirs at law—those who would inherit even in the absence of a will. Depending on the individual’s connection to the decedent, a different type of notice may be necessary.
Evidence of the Last Will and Testament’s Validity
The primary goal of the probate process is to demonstrate the will’s legitimacy—that it was lawfully completed, that it belonged to the dead, and that the decedent had the mental ability to make a will. The petitioner—the party submitting the will for probate—must establish these conditions.
Bond for an Executor
In order to guarantee that the job is done correctly, the executor could be asked to submit a bond. Most wills have a provision that permits the executor to act without posting a bond, although it may be necessary on rare occasions. The bond acts as insurance to cover any damages the executor may incur.
Decree Granting Probate and Testamentary Letters
The Surrogate will issue a decree granting probate and permitting the issuance of Letters Testamentary to the executor once the Surrogate is satisfied that the will is legitimate, that the required parties have received adequate notice, and that the nominated executor is qualified for the post.
Managing the Estate
The executor must start handling the estate’s administration as soon as the will is granted probate. In essence, this entails assessing debts and gathering assets.
Since the executor must ensure that assets are safeguarded, creditors are compensated, and the net estate is distributed to the beneficiaries according to the decedent’s will, they may find this task to be the most difficult of all. The executor’s duties include a few of the following.
Identifying Assets
In some cases, the executor is quite familiar with the deceased’s assets. Little is known regarding the presence of assets in other circumstances. The assets of an estate can be determined using a variety of techniques.
Stock of Assets
The executors must list the assets of the deceased. The court must receive an asset list no later than six months from the appointment date or the deadline for filing an estate tax return, whichever comes first. An appraisal should be performed on real estate and occasionally other valuable goods.
Account for the Estate
In order to keep estate monies separate from the executor’s personal funds, the executor needs to open an estate account.
Estate-Specific Taxes
The decedent’s final income tax return, estate tax return, and fiduciary income tax return are just a few of the federal and state tax returns that the executor is in charge of filing.
Keeping of Records
It would be best if you meticulously documented every activity taken on the estate’s behalf, including every expense. In addition to the fact that you must do this, heirs, creditors, or the court may occasionally raise queries or complaints. Your ability to answer for your activities is guaranteed if you keep accurate records.
These are only a handful of the many duties that an executor is responsible for. The executor may also be responsible for a variety of other tasks, depending on the specifics of each estate.
Therefore, it’s critical to identify the precise tasks that must be completed as well as the most effective means of doing so.
Accounting and Finalizing the Estate
Accounting is the last step in the probate process. Since they are nearing the finish line and the remaining assets are prepared to be distributed to the beneficiaries, executors are frequently relieved to reach this stage of the procedure.
The executor is prepared to account once all assets have been gathered, all debts have been calculated, and all controversies have been settled.
Simply put, accounting is the executor’s technique of documenting what has been received, what has been paid, and how the remaining assets should be dispersed. The executor needs the beneficiaries’ approval of the account and confirmation from the beneficiaries and creditors that they have received their just compensation.
Most estate settlements are informal and take place outside of court. The account would be created by the executor’s attorney and approved by each beneficiary. The beneficiaries are requested to sign a Receipt & Release approving the account, attesting that they have received their entitlements, and absolving the executor of responsibility.
Some estates are resolved through a judicial accounting action for a variety of reasons, including the inability to locate an interested party or the unwillingness of that party to approve the executor’s account. The executor submits a petition asking the court to approve her account as the first step in this process. Notice of the proceeding must be given to all beneficiaries, creditors, and other interested persons, so they have time to oppose.
The Surrogate can hold a hearing to settle a dispute if one arises. Finally, the Surrogate issues an accounting decision that accredits the account and absolves the executor of responsibility.
What Types of Will Conflicts Are Most Common in New York?
Uncertain or improperly written wills may result in several legal challenges. Common will disagreements include:
- Instances where the incorrect person receives property
- Situations in which a beneficiary receives the incorrect item or quantity
- Disagreements over titles and deeds (i.e., partial property interests)
- Arguments about the estimated value of a property item or asset
More investigation and analysis may be necessary to settle these kinds of issues. A will should be updated and evaluated regularly, especially after significant life changes or acquisitions, as this might put additional stress on the beneficiaries and recipients.
Should I Hire a Lawyer in New York to Help Me Probate a Will?
The probate laws in New York can be complicated and may have several exceptions. You might need to engage an experienced New York probate lawyer if you require legal counsel or representation concerning probate laws. An expert attorney can assist in defending you in any court proceedings and offer guidance on any problems.
