Probate Law in New York, NY
What Is a Probate Law?
A probate is a legal process that determines the validity and administration of a last will and testament. When an individual leaves behind assets, the court appoints an executor (if one is not named in the will). In either case, the appointed official collects all remaining assets, pays off any remaining liabilities, and disperses the remaining assets to beneficiaries listed in the will or to beneficiaries designated by the executor (if no will is present), all according to New York, New York probate law.
How Does New York, New York Probate Law and the Probate Process Work?
Locating the Will
The first step is determining whether a will even exists. In most cases, the decedent leaves clear direction regarding the location of the last will and testament or files one with a primary attorney. However, sometimes people have to go digging for one. In other cases, there is no will and the New York court-appointed executor must handle all assets.
It is also possible that the deceased created a living trust instead. A living trust is a document that places all assets into a trust and that transfer to a designated trustee upon death. Living trusts do not require any probation or courts. For this reason, many parties elect to go this route for the sake of convenience and avoiding drawn-out New York, NY court battles.
The Surrogate’s Court of New York County handles most probate matters in New York City. Probate cases are generally matters dealing with estate and inheritance disputes. However, probate courts may also hear cases involving adoption or mental fitness of an individual if it relates to an estate, trust, or living will.
Notifying the Court
Notifying the court to open the estate is the next step. The New York, New York probate law court clerk can handle this step, unless there is a named executor.
After the court receives notification, a scheduled hearing takes place. This officiates the executor appointee and grants him or her legal authority to operate on behalf of the last will and testament.
If there is no will and no designated executor, the court chooses the executor. Making this selection differs from state to state, but generally, the surviving spouse is first in line. After that, any adult children, parents, or siblings receive consideration.
The executor must identify the decedent’s remaining assets. To do this, she or he reviews any related banking or financial documents and any other personal documents that could lead them toward recovering assets. Some examples of documents to collect are insurance records, titles, stock portfolios, and tax returns or filings.
To freeze and later close accounts, the executor must notify any financial institutions with outstanding accounts of the individual’s death in New York. If there are any physical valuables in the decedent’s property, it is not uncommon for the executor to collect these items to prevent theft or damage.
The executor then determines the valuation of each item of the estate. This can be a lengthy process depending on the ease of locating all assets, including real estate, stocks, bonds, etc. Notifying creditors is the next step.
Generally, the executor notifies creditors associated with the estate so they can make a claim if they have outstanding balances. Creditors have a specific time frame in which to file a claim, and this window can vary depending on state law.
Creditors in New York must be notified by mail of the death of the decedent. The creditor then has 7 months from the date of notification to file a legitimate claim against the estate. If a claim is filed, it must be written and mailed or delivered by personal mail to the executor. Claims filed after the 7-month threshold may not be honored by the court.
Squaring Away Final Payments
The executor pays any funeral expenses (unless the family covers them) and any debts or taxes from the estate. The executor determines which creditor claims are accurate. From there, the executor squares away any outstanding debts to clear the estate of all obligations before being dispersed according to the will.
Proceeding With the Court
After valuing all the decedent’s assets and paying all outstanding debts, the executor submits a report detailing all estate spending to the New York, New York courts. At this point, a judge reviews the materials. Assuming everything was done correctly, they render a decision to clear the executor to move forward with the final step.
Executing the Last Will and Testament
At this point, the executor disperses the assets to the designated beneficiaries laid out in the will. Depending on how detailed the will is, this could either be a simple process or it may divide the remaining family. A New York probate law attorney can help you or a loved one avoid these costly mistakes and counsel you on the best course in the event of a family estate battle.
According to Courts of New York, when someone has passed an executor is appointed to oversee the will. It is the executor’s job to file the will and marshal all the decedent’s assets. Then the executor must notify all parties of the decedent’s death. This includes surviving spouses, children, beneficiaries, and creditors. Once valid creditor claims have been paid, the executor divvies up the assets according to the will. When this is completed, a final tax return is filed on behalf of the deceased and the estate is closed.
If there is no last will and testament, the executor assigns beneficiaries in accordance with New York state laws. Generally speaking, the surviving spouse is first in line to receive any remaining assets. After that, the decedent’s children come next. Any surviving siblings would be next. From there, the executor works down through the surviving family based on their direct relation.
Is Probate Law Necessary?
No. There are alternatives to probating a will, but this really depends on the circumstances surrounding the decedent. For example, the deceased may have established a living trust that circumvents the probate process. The individual may have not owned any assets, thus simplifying the New York process.
The New York State Bar provides criteria that must be met for probate to transpire. If the total assets of the estate are valued at $50,000 or higher, probate is triggered automatically. If the total sum is less than $50,000, the court process can be largely avoided through a process called Voluntary Administration. However, you should keep in mind that no real property, regardless of value, can pass through Voluntary Administration.
What Are the Differences Between a Living Trust and a Will?
Living trusts are a way to avoid probation. However, this is one of the primary differences between a living trust and a will. Another main difference is that a living trust is only as good as the assets therein. This means that if you pass away without funding the trust with your assets, it is practically worthless. On the other hand, you do not have to fund a will, as you merely choose where to transfer your assets upon your death.
Setting up where your assets go after you die is an important decision. This is why you should consult with a New York probate law attorney to make the correct decision.
Work With an Experienced Local Probate Law Attorney in New York, New York
Probate law attorneys assist with valuing your total assets and can provide insight into what the best move would be for you. Are you in need of a New York probate law attorney who can help you and preserve the future of your family? We can even help you connect with an attorney across New York state lines.
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