Probate is a legal process that comes into play if you die in direct personal possession of property, and if you were to use a will to facilitate the distribution of your assets upon your death. In the state of New York, probate matters are handled by the Surrogate’s Court.
During probate, interested parties could come forward to contest the validity of the last will. There are certain acceptable grounds that could be used to challenge a will. These would include improper execution, undue influence, coercion, fraud, and the incapacitation of the testator.
The probate process allows creditors and claimants to come forward seeking satisfaction from the estate. Final taxes must also be paid during probate.
When you draw up a last will, you name an executor. The executor must offer the will to probate. The court will supervise the administration of the estate, but the executor will handle all of the business of the estate. This business will include the satisfying of rightful debts. The executor will also prepare the assets for distribution to the heirs that are named in the last will.
Simplified Probate
In the state of New York, it is possible to avoid the full probate process if the estate in question is quite small. A simplified probate procedure may be approved by the court if the estate is valued at $30,000 or less.
Avoiding Probate
Probate provides certain protections, and the state of New York does everything possible to provide an efficient and streamlined process. However, you have options. You do not have to use a last will to facilitate the distribution of your assets.
For example, you could create a revocable living trust. You do not surrender control of assets that you convey into this type of trust. You can revoke or amend it at any time, and you can act as both the beneficiary and the trustee while you are still living.
When you draw up the trust agreement, you name a successor trustee and successor beneficiaries to assume these roles after you die. The trustee would distribute assets to the beneficiaries according to your wishes after your passing. Probate would not be a factor.
Special Report on Probate
If you would like to obtain some in-depth information about probate, we have prepared a special report on the subject. To access the report, which is being offered free of charge, click this link: Free Probate Report.
Michael Robinson, Estate Planning Attorney
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