As estate planning attorneys, we often have interactions with the Surrogates’s Court, which is the court that handles probate matters in New York. Many people decide to implement probate avoidance strategies, and there are good reasons for doing so. We will get to them in this post, but along the way, we will explain some of the reasons why probate exists, and why it is necessary.
When you think about the concept of guardianship as it applies to estate planning, you are naturally going to conjure images of children that are left on their own. These situations are handled by the probate court. All of the relevant information is presented, and the court would ultimately appoint a guardian to care for the children.
The above being stated, adult guardianship is another matter that falls under the auspices of the court, in this case Supreme Court. This is relevant in our area of the law, because latter life incapacity should be prepared for when you are devising your estate plan.
Interested parties can petition the court to appoint a guardian to handle your affairs if you become incapacitated at some point in time. However, you can take the matter out of the hands of the court and choose your own representatives in advance.
Avoiding “living probate” in this manner is useful because you can be sure that your own hand-picked decision makers would be empowered to act for you if it becomes necessary. Plus, everyone in the family would know that this is your personal choice. There would be no cause for disagreements, but this is not the case if the court makes the decision.
In some instances, a person that is in possession of relatively significant resources will pass away without any estate planning documents at all. This is called the condition of intestacy, and the government has to have some remedy in place to address these situations.
The probate court handles intestacy cases. They appoint a personal representative to act as the administrator of the estate, and when all of the details have been attended to, the assets are ultimately distributed using the intestate succession laws of the State of New York.
Once again, this is something that should be avoided. It is very possible that someone that you would never intentionally leave out could be shortchanged or disinherited if your assets are distributed along these succession lines.
Estate Administration Supervision
If you use a last will to state your final wishes regarding the distribution of your assets after you are gone, you would name an executor in the document to administer the estate. After your passing, the will would be admitted to probate, and the court would make sure that the will was valid.
Anyone that wanted to challenge the validity of the will would be able to make a case during the probate process. Opening this window of opportunity is not necessarily a wise idea, especially if you have reason to believe some people close to you may not be happy with your decisions.
Speaking of your decision-making, probate records are public, so anybody that wants to pry into your final affairs can find out exactly how you decided to distribute your assets. This can cause acrimony among interested parties, and the loss of privacy is generally disconcerting.
In addition to these drawbacks, probate is time-consuming, and significant expenses accumulate during the process. It is possible to avoid probate entirely through the utilization of a living trust instead of a last will as the centerpiece of your estate plan.
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Today is the day to and of the procrastination if you have been going through life without an estate plan. You can send us a message to request a consultation appointment, and we can be reached by phone at 585-374-5210.