When a person dies and leaves assets behind, their estate must go through probate in most cases. This process is often quite complex and time-consuming. For the average person, it can feel overwhelming. If you understand some basics about probate, it may make the process easier to deal with. It’s also important to know if and when an estate must be probated.
New York State Probate Law and Process
The process of probate takes an average of seven to ten months to complete in New York. However, that timeline can be much longer if there are claims against the estate or if anyone contests the will. It’s a good idea to get a basic overview of the process, so you know what to expect and when it may happen.
Sometime in the first month after the person died, the family or attorney will locate the will and it must be read to the heirs. The will may designate someone to act as administrator or executor of the estate. That person will need to get a certified copy of the death certificate and file it with a petition for probate along with the will to the Surrogate’s Court.
In the next step, the court issues what is known as letters of administration, which name the executor and gives them power to act on behalf of the estate. The executor will need to notify any creditors of the death of the person and begin making a list of assets for the estate.
Once everything has been inventoried, the assets must be appraised to determine their value. When the creditors bring claims against the estate, the executor will use funds from the estate to pay off the debts. If there are no liquid assets, they will need to sell other assets.
Sometime around the fourth month, the executor will need to fill out a Form 706 for a federal estate tax return and pay any taxes owed. Over the next two or three months, all creditors should be paid along with the taxes. A final accounting statement should be filed with the court to show that everything has been completed.
After the court approves the accounting, the executor can then disperse the rest of the estate to the heirs. They will file a petition to discharge the estate and close it.
This is a basic breakdown of what happens with probate. The timeline can vary widely, based on several factors. For instance, there may be contests to the will or to the accounting. If someone contests the accounting, they may disagree with assessed values of the property or claims made by creditors. Any contest will result in a delay until the court can hear the issue. Creditors may file litigation against the estate for money owed, which will also delay the process.
Do I Need to Probate My Relative’s Will in New York?
Even if you live out of state, you will need to go through probate in New York if your relative lived in the state or owned property in the state. You will need to go through probate unless the property is exempt for some reason.
Much of the time, the court will select an executor who lives in New York to handle the process because it’s more convenient for them. Since this process takes several months, it can be difficult for an out-of-state executor to take care of all the tasks. However, an executor who lives out of state can take on the job of executor as long as they can meet the requirements and handle the tasks involved in the process.
Do I Need an Attorney to Handle My Probate in New York?
New York probate law doesn’t require families to hire an attorney for probate. It’s possible to handle it yourself, but it’s quite complicated. Many families choose to hire an attorney to handle the legal matters. They may file the petition and take care of other tasks for the process. An accountant can also help with paying bills and other financial matters during this time.
If there are issues with probate, especially if something is being contested, it’s best to have an attorney handle the matter. They can support the intentions of the deceased and protect the rights of the heirs. The larger the estate, the more likely that hiring an attorney can be the right move.
New York Probate Costs
Probate can be quite expensive in New York. There are several fees to be included. The court will charge a filing fee based on the value of the estate. For example, an estate worth less than $10,000 is charged a $45 fee while one valued at more than $500,000 will pay $1250.
The estate will also be charged legal fees for the attorney. The law doesn’t provide a set fee, so it becomes an arrangement agreed upon by the attorney and client. Attorneys usually charge hourly, by a flat fee or with a percentage of the estate.
When is Probate Not Necessary in New York?
Not all estates are required to go through probate. It’s helpful to know what criteria determines when probate isn’t necessary based on state law. The main factor in determining if probate is necessary is the size of the estate. If the person who died had assets worth less than $30,000, it is labeled as a small estate and doesn’t need to go through probate.
Another way to get around probate is to have what is known as non-probate assets. They assets have a beneficiary attached to them, so there isn’t a need to determine who will receive them. Examples of this type of asset includes the following:
- Assets held in a trust
- Life insurance benefits
- Retirement accounts
- Accounts that are designated as Payable on Death
- Jointly owned property with rights of survivorship
People who want to avoid probate will often create a trust to hold their assets or at least most of them. Any assets placed in the trust will not have to go through formal probate.
Small Estate Alternatives
If an estate meets the requirements of being labeled a small estate, which means less than $30,000 in assets, it may go through what is called a voluntary administration proceeding, according to New York probate law. An estate won’t qualify for this proceeding if the person who died was the sole owner of any real property. If the real property was jointly owned, the estate may be eligible for small estate administration.
In this situation, the Surrogate’s Court must appoint someone to act as voluntary administrator. If there was a will, the person named as executor will act in this role. If there wasn’t a will, the person who is the closest heir will be named.
The court will provide a certificate for each asset once the voluntary administrator collects all of them. This person will also distribute all assets as required by law.
This is a basic look at the New York probate process, when an estate must go through probate and how long it will take. To find out specific information about your estate, you can talk to an attorney to get the answers you need.