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  • Mark J. Keller, Esq

Understanding Probate in New York



Probate

Probate in New York is a legal procedure mandated by the court to validate a deceased person's will, settle outstanding debts, and distribute assets to the rightful heirs. This process is essential for managing the estate of someone who has passed away, ensuring that their wishes are honored and that beneficiaries receive their inheritance in accordance with the law.

 

The Probate Process Explained

The probate process involves several key steps, beginning with filing the deceased's will with the Surrogate's Court. If the individual dies without a will, known as dying intestate, the state laws dictate the distribution of the estate to the next of kin. The executor, appointed in the will, or an administrator appointed by the court in the absence of a will, plays a crucial role in managing the estate. They are responsible for gathering the estate's assets, paying off debts, and distributing what remains to the beneficiaries​​​​​​. This role requires careful management and a thorough understanding of the deceased's financial affairs.

 

Why Probate Can Be Lengthy in New York

The duration of the probate process in New York varies. Several factors can extend the timeline, including the size and complexity of the estate, disputes among beneficiaries, and the efficiency of the court handling the case. Real estate, business interests, and other assets can complicate the estate, necessitating additional time for proper management and distribution​​​​.

 

Challenges Post-COVID

The probate process has faced delays in the wake of COVID-19, primarily due to increased caseloads and court operational adjustments. These disruptions have led to longer wait times for estate settlements, affecting beneficiaries and executors. These delays have contributed to the need for virtual hearings and the backlog of cases ​​.

 

Strategies to Avoid Probate

Avoiding probate can save time, money, and privacy for the beneficiaries of an estate. Here are several strategies that can be employed in New York to bypass the probate process, each with specific approaches and considerations.

 

Living Trusts

Creating a Living Trust allows individuals to transfer their assets into a trust during their lifetime. The person creating the trust, known as the grantor, can control the trust assets and designate a successor trustee who will manage and distribute the trust assets after the grantor's death. This process does not require probate, allowing for a smoother and quicker transfer of assets to beneficiaries.

 

Joint Ownership

Joint Ownership of Property with the right of survivorship means that if one owner dies, the surviving owner(s) automatically receive the deceased owner's share of the property. This transfer of ownership occurs outside the probate process.

 

Payable-On-Death and Transfer-On-Death Accounts

Payable-On-Death (POD) and Transfer-On-Death (TOD) Designations allow bank accounts and securities to be transferred directly to a named beneficiary upon the account holder's death, bypassing the probate process.

  • POD Accounts: Typically used for bank accounts. The account holder retains control over the funds during their lifetime, and the beneficiary receives the balance upon the holder's death.

  • TOD Registrations: Used for securities and brokerage accounts, allowing for directly transferring assets to beneficiaries.

 

Gifting

Gifting Assets During a Lifetime reduces the size of an estate, potentially simplifying or eliminating the need for probate. Strategic gifting can also help minimize estate taxes.

 

Small Estate Affidavit

For estates valued at $50,000 or less, New York allows for a Small Estate Affidavit process, also known as voluntary administration. This simplified process requires less paperwork and can expedite the distribution of assets when it consists mainly of personal property, not including Real Estate.

 

Navigating Probate with Experienced Legal Guidance

While New York has not adopted the Uniform Probate Code, which simplifies the probate process, understanding the state's specific probate statutes is crucial for efficiently managing an estate. Executors and administrators can benefit from the expertise of a probate attorney, especially when dealing with large estates or potential legal disputes. Mark Keller can offer guidance through the probate process, help file the necessary documents, and ensure compliance with all legal requirements​​​​.

 

Probate in New York is a complex process that requires careful attention to legal procedures and deadlines. With the right strategies, it's possible to minimize the impact of probate on the estate and beneficiaries. Planning, considering alternatives like trusts, and seeking professional advice can streamline the process and ensure a smoother transition of assets.

 

The Law Office of Mark J. Keller is here to assist those navigating probate or estate planning in New York. Our team is committed to providing comprehensive support through every step of the probate process. For more information or to schedule a consultation, please call us at 718-297-1890 or visit https://www.markkellerlaw.com/contact-us. Let us help you manage the complexities of probate and estate planning, ensuring peace of mind for you and your loved ones.

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