Any experienced estate planning attorney will have likely heard more questions about probate than almost any other area of the law. For whatever reason, probate is one of those legal topics that most people don’t really know much about. What little people do know is also, unfortunately, often based on misperceptions and common knowledge that is woefully misrepresentative of what the law actually is. To help you better understand probate and dispel some of the mystery surrounding it, here’s some common wisdom you might’ve heard about probate that is not accurate.
I don’t have to worry about probate because I’ve already made a last will and testament.
The idea that you can avoid probate by making a will is one of the more damaging probate myths out there today. No one really knows how this myth got started, but it’s all too common. The idea is that writing a will allows you to avoid probate, and the costs that come with it. Avoiding probate is great because it will save your estate money and will ensure your heirs receive their inheritances quickly.
Unfortunately, this idea is exactly opposite from the legal reality. All states have specific laws that dictate what you have to include in the last will and testament. If you fail to meet the state requirements, any will you make will not have any legal effect.
So, the question isn’t whether you have made a last will and testament, but rather whether your will meet the standards imposed by the state of New York. To determine if this is the case, a Surrogate’s Court (the New York version of a probate court) will have to review the document to determine its legal status. In other words, making a will guarantees that the probate court will have to be involved.
Probate is necessary in every case.
If you die without a will, or die leaving behind a last will and testament, your estate will have to pass through probate before your children or other heirs can take possession of the property you leave behind. However, these aren’t the only two options. Experienced estate planning lawyers know that the best estate plan is often one that avoids probate completely. By creating an estate plan that will minimize or eliminate the need for probate, not only can you save your estate money in the long run, but you can also ensure that your inheritances will transfer much more quickly, and privately.
Failing to create an estate plan that avoids probate can incur unnecessary expenses. Further, if legal battles arise, a probate case can last many months, and possibly years.
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