There are those that think that the executor of a will can independently distribute assets according to the wishes of the testator. They just read the will to the people that are named in the document and go about their business.
You may have seen something like this on a television show, but it is not the way it works in reality. The will would be admitted to probate, and the Surrogate’s Court would provide supervision during the administration process.
Probate serves a purpose, because it gives creditors a chance to come forward to seek satisfaction before the inheritances are distributed. Another function of the court is to determine the validity of the will, and the court would entertain any challenges that are issued.
The Problems With Probate
In fairness, New York does a good job when it comes to the way the probate process is constructed. We are not trying to be disparaging, but there are some inherent realities that are really not very positive for the rightful inheritors.
Expenses accumulate during probate, including the executor’s remuneration, court costs, accounting and appraisal charges, and in some cases, attorney and accounting fees. The estate has to pay these bills, so the expenses reduce its value before it is distributed to the heirs.
Losing a loved one is a very sad experience, but when you know that you are going to be receiving an inheritance, there is no reason why you would want to wait.
The exact amount of time that it will take will vary depending on the circumstances, but full probate will usually take about eight months at minimum. Typically, no inheritances are distributed until the estate has been probated and closed by the court.
Nobody announces their major financial decisions publicly for all to see. At least they do not do this while they are alive, but probate records are available to the general public. This is another drawback that goes along with the process.
Some types of asset transfers are simply not subject to probate. Life insurance proceeds often are distributed directly to the beneficiary outside of probate. The same thing is true for beneficiaries of payable on death bank and brokerage accounts. Property that is held in joint tenancy would be transferred to the surviving joint tenant, and probate would not be a factor. However, each of those strategies have significant shortcomings and may not at all be the best solution for a family.
If you were to use a living trust instead of a last will as the primary asset transfer vehicle, the probate court would not be involved in the inheritance distributions. Moreover, with a living trust you can provide significant protections to your beneficiaries, including from creditors and divorcing spouses.
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