If you recently lost a loved one, you are undoubtedly going through the grieving process that follows. While you may not wish to think about the practical steps that need to be taken as a result of your loved one’s death, you may have to do so if you were named as the Executor of the estate in the decedent’s Last Will and Testament. If you have never before served as an Executor, however, you probably do not know where or how to begin the probate process. Although it is always wise to consult with an experienced probate attorney before you get started, probate attorney Michael Robinson explains some common steps in the probate process to help you feel more comfortable in your role as Executor.
Probate Fundamentals
Over the course of a lifetime, almost everyone acquires assets that become part of their estate at the time of their death. Some people amass a huge estate that includes complex and valuable assets while other people own little more than their personal possessions at the time of death. Regardless of the size and value of assets owned by a decedent, those assets must be identified, valued, and passed down to the new owners. That is the primary purpose of the legal process known as probate. Before those assets are passed down, however, there are a number of steps an Executor must oversee during the probate process.
Probate Steps
Because every estate includes a unique set of assets as well as circumstances, the probate process is equally unique for every estate. Nevertheless, there are a number of basic steps in the probate process that are fairly universal, such as:
- Identifying, locating and valuing estate assets – as soon as possible after the decedent’s death, an inventory must be completed of the decedent’s assets, including both tangible and intangible assets. Assets must also be secured which may mean doing things such as closing a financial account or locking up real property. A date of death value will be required for all estate assets as well. For some assets, this may require the assistance of an appraiser.
- Identifying probate assets — not all assets are required to go through probate. Common assets that bypass the probate process include assets held in a trust, proceeds of a life insurance policy, and certain types of jointly held property.
- Initiating probate in the appropriate court – to initiate probate in the State of New York, the Executor must submit the decedent’s original Last Will and Testament to the appropriate Surrogate Court. The Will must be accompanied by a petition to open probate and a certified copy of the decedent’s death certificate.
- Identifying, locating, and notifying beneficiaries and/or heirs — if the decedent left a Will and/or a trust, the beneficiaries named in that Will and/or trust must be notified. In an intestate estate administration, the legal heirs of the estate must be notified.
- Approving or denying creditor claims — all claims filed by creditors must be evaluated by the Executor (or Personal Representative in an intestate estate) and approved or denied. Approved claims must be paid, in the order of priority, using available assets.
- Liquidating assets — sometimes an estate lacks sufficient liquid assets to pay all creditors. In that case, the Executor/PR must sell estate assets to raise the funds required to pay the debts of the estate.
- Litigating claims – if anyone challenges the validity of the Will submitted to probate, the Executor must defend the Will throughout the ensuing litigation. In addition, a creditor whose claim was denied may appeal that denial to the court in which case the Executor/PR must represent the estate during the litigation.
- Calculating and paying taxes – the estate is subject to state and/or federal gift and estate taxes. The Executor/PR must prepare the appropriate tax returns and if taxes are owed, they must be paid out of available estate funds before wrapping up probate.
- Effectuating the transfer of assets –at the end of the probate process, the Executor/PR must effectuate the transfer of the remaining assets to the intended beneficiaries and/or heirs of the estate.
Contact Rochester Probate Attorney
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about the probate process in New York, contact the Law Offices of Michael Robinson, P.C. by calling (585) 374-5210 to schedule an appointment.
