What is Probate and How Does It Work?

Probate: What is It and How Does It Work?

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If you're dealing with someone's estate as an executor, administrator or beneficiary, you have probably been involved in the probate of that estate. Many people aren't sure what probate means, if it's necessary, or what it involves. When a loved one dies, you’ll need to file their will with the county where they lived, as well as a petition to open probate. This article breaks down what you need to know about the probate process in New York State and how to avoid it.

Q: What is Probate?

A: Probate is the legal process of transferring title to someone's assets after they pass away. The probate process involves sorting out their assets, paying off any debts, and making sure everything is done right under the court's watch. In New York, the Surrogate's Court takes care of this process. They check the legitimacy of the will, select someone to manage the estate, and ensure that the deceased person's assets are distributed according to their wishes when there is a will or what New York State laws dictate when there is no will.

Q: What are Probate Assets?

A: Probate assets are assets title in a deceased's name. Jointly titled assets, life insurance, IRAs and 401Ks are not individually owned assets, as they all have a beneficiary which dictates where the assets end up. You cannot leave someone your IRA by saying so in your will. Those assets will be paid to the beneficiary you designated when you took out the IRA.

Q: Is the Probate Process Necessary?

A: Not all estates require probate. Small estates that have been valued under $50,000 (excluding real property) can be settled through a simplified process called 'small estate administration'. As stated above, if the deceased person had a trust or had jointly owned assets, the probate process may also be avoided. You may contact the estate planning attorneys at Ronald J. Axelrod & Associates to assist you in determining the best way to plan your estate.

Q: How Does Probate Work?

A: Here are the key steps in the NYS probate process.

Petition for Probate 

To begin the probate process, the executor named in the will (if there is a will) or the administrator (if there is no will), must file a Petition with the Surrogate’s Court in the county where the deceased resided together with a certified original death certificate and will. The Petition includes details about the deceased, their family members, their assets, and their beneficiaries (who may or may not be family members). 

An Executor or Administrator is Appointed

If the will is deemed valid (proves), the Court appoints an executor, who may or may not be the nominated executor. If the deceased person did not leave a will, the court will appoint an administrator to manage the estate who is typically the surviving spouse, parent, adult child, or sibling. The executor or administrator is responsible for gathering and protecting the assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries. 

Notify Heirs and Beneficiaries

The petitioner must notify all interested parties, including heirs and beneficiaries of the probate proceeding. This is typically done through a citation, which is a formal notice issued by the court. In the alternative, the next-of-kin or the family can sign a document giving this formal notice.

Inventory of Assets

It is the responsibility of the executor or administrator to compile an inventory of the deceased person’s assets. This will include probate and non-probate assets. If there are items that are of significant value, appraisals may need to be included. This inventory list must be filed with the Surrogate’s Court which will ensure that all assets are accounted for before being distributed. The Court also charges a filing fee based on the value of their assets.

Pay Off Debts, Taxes, and Expenses

The executor or administrator is responsible to use the estate's assets to pay any outstanding debts, taxes, and fees (such as funeral expenses and attorney fees). State and federal taxes may apply, depending on the estate's value. If the decedent's bills exceed the cash available, the executor or administrator may have to liquidate assets to pay them.

Account Filing and Assets Distribution

After all debts, taxes, and expenses have been paid, the executor or administrator must file an account with the Surrogate's Court detailing the financial transactions of the estate. Before the Court approves the accounting, all beneficiaries must approve the executor's accounting, then remaining assets can be distributed to the beneficiaries as specified in the will. If there is no will, the court will distribute assets in accordance with New York State’s intestacy laws. 

Closing the estate

Once the assets have been distributed, the executor or administrator must file a closing statement with the court, signifying the completion of the probate process. Yes, it is a lot of paperwork, but that's what Rochester, NY's estate planning attorneys at Ronald J. Axelrod & Associates do and why we have experienced paralegals to help us.

Conclusion

Ronald J. Axelrod & Associates are here to help in both estate planning and probate process. We're here to help make settling an estate as easy as possible. Please call our office to schedule an appointment at (585) 203-1020.

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