Probate Law

1. What is probate?
2. Is it easy to handle probate on your own, without a professional?
3. What does the executor do?
4. Do I have to serve as executor if named in a will?
5. What are some taxes included in probate?
6. Is there a way to avoid paying death taxes?
7. Does all of a person's property have to go through probate?
8. What is required to prove the validity of the Will?
9. What are the costs associated with probate?
10. What if I die without a will?
11. What happens when a will is lost or stolen?
12. Where do you go to obtain the documents for probate?
13. When should I make a will?
14. How long does it take to close an estate once probate is started?
15. What are the time limitations on probates?

Helpful Links

 

1. What is Probate?
Probate is just the first step in Estate Settlement. It involves the procedure of proving facts about the Will. These facts include proving the Will was the last one created, that it was correctly signed and that testamentary capacity was present at the time of the last signing.

Estate Settlement: the handling of an estate by an executor or administrator when someone dies. It includes laws that make sure creditors are paid properly and assets are distributed to their beneficiaries or "heirs."

Simple steps involved in Probate:

1. Identify, collect, appraise all assets of the deceased.
2. Pay the bills (taxes and debts of deceased)
3. Distribution of assets according to the Will or by state laws of intestate succession (for person without Will)

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2. Is it easy to handle probate on your own, without a professional?
Probate is a complex system. Especially for large estates, it is very hard for a non-professional to properly handle probate. It is recommended by this website and many experts in the field that a person dealing with probate should seek out the advice and help of an attorney.

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3. What does the executor do?
Generally, the executor handles the affairs of the estate for the deceased. They are required by law to determine all aspects of the estate, pay taxes and debts of the estate, and distribute the remaining assets to the beneficiaries or "heirs".

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4. Do I have to serve as executor if named in a Will?
No. The Court will appoint an alternate executor. You can also resign at any time.

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5. What are some taxes included in probate?
Death taxes which are also called Estate Taxes are federal taxes imposed by the IRS or the state on a person’s estate. Estate taxes are applied to the taxable estate which is the value of all property minus allowable deductions. It is also required that the Executor files the decedent's final tax returns, and pay taxes owed.

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6. Is there a way to reduce death taxes?
Yes, by a method called "gift giving" which is giving some of the wealth accumulated to relatives to reduce the size of the estate in the years prior to the death. In order to assure that this is effective, you should seek the advice of an attorney.

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7. Does all of a person's property have to go through probate?
No. Ownership by Joint Tenants with Right of Survivorship results in that property passing to the surviving co-owners without going through probate. Also, life insurance policies or annuities payable which go directly to a named beneficiary avoid the probate process. Similarly, IRA's and 401k's transfer automatically to the persons named as beneficiaries. Payable on death bank accounts and "in trust for" accounts which have a beneficiary do not go through probate.
It is also possible with "small" estates in New York State (not including real estate) to go through estate settlement without probate.

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8. What is required to prove the validity of the Will?
Usually the court gives an opportunity to allow others to object to the Will and to determine if the Will is valid. It must be shown that the Will was the last will; there was testamentary capacity (deceased was mentally competent, over 18 years old, and there was no undue influence); and that the Will was correctly signed.

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9. What are the costs associated with probate?
The process of probate may cost approximately 4-7% of the total estate value. This includes executor fees, court filing fees, legal and accounting fees. If a Will is contested there could also be substantial litigation costs.

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10. What if I die without a will?
If you die without a Will, the state appoints an Administrator who will follow state rule as to how your estate will be distributed after debts and taxes are paid. New York State uses "intestacy rules" to determine who gets property, money, and other assets.

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11. What happens when a will is lost or stolen?
Sometimes, families will run into the problem where the original Will cannot be located following the death of a family member. When a Will cannot be found at the time of a testator's death and after every effort is made to locate the Will by calling lawyers, banks and friends, the will is presumed that the Will has been revoked by the testator.

The result is that the deceased died without a Will, and New York State will go about dispersing the deceased estate under "intestacy rules."

If you have a photocopy of a Will, but not the original Will, it may be possible to probate the photocopy, although this is not the court's first choice and the courts may not allow this.

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12. Where do you go to obtain the documents for probate?
Each county in New York State has a Surrogates Court where you can obtain probate papers. They can also be found on this website: http://www.nycourts.gov/forms/surrogates/omni/probate.pdf

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13. When should I make a will?
You must be at least 18 years of age to create a will. It is recommended that everyone make a will when they acquire property to protect the distribution of assets and/or have children so a guardian can be assign in the event of a parental death.

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14. How long does it take to close an estate once probate is started?
It depends on the estate and the complexity of the settlement.

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15. What are the time limitations on probates?
An interested person may offer a will for probate at any time. For example, if you find out that your spouse who died 10 years ago had a separate bank account, you are still eligible to probate at anytime to receive those assets. However, other rights may be jeopardized by an unreasonable delay.

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Helpful Links:

On probate documents:
http://www.nycourts.gov/forms/surrogates/omni/probate.pdf

To American Bar Association:
http://www.abalawinfo.org/

To New York State Bar Association:
http://www.nysba.org/

For finding a lawyer:
http://www.1800probate.com/probate-lawyer/new-york.html

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