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Long Island Probate Attorney
The bottom line when it comes to probate and estate administration is to keep those you love from having to deal with unresolved estate issues while they are in the midst of grieving. The process by which an estate is reconciled, then distributed, is known as probate, if there is a will, and estate administration, if a person dies without a will. New York, like all states, has its own set of rules related to probate and estate administration. After the requirements are properly followed, your beneficiary can receive the assets you left for them.
New York probate and estate administration have the potential to be both lengthy as well as complicated. Prudent estate planning, however, can ensure the process occurs as quickly and painlessly as possible—you will both ensure your wishes are properly fulfilled and that your loved ones are not embroiled in problems when they are mourning your loss. An experienced New York probate lawyer can help you understand the probate process, while comprehensively answering all your questions. Esther Schwartz Zelmanovitz, PLLC, can assist you in designing an estate plan that will most closely fulfill all your wishes.
What happens if someone dies without an estate plan in place?
How Does Probate Begin in New York?
Following your death, if you have a will, your executor will initiate the legal process to wind up all your affairs and distribute your estate assets according to the provisions you have set forth. The executor you named in your will must submit a petition to the Surrogate’s Court, asking the court to recognize that the will is valid and for authority to administer your estate. This petition must include a copy of your death certificate, as well as your original will. The court will make a determination as to whether your will was properly executed, and if so, it will be “admitted to probate,” and the executor will be issued a document known as “Letters Testamentary.”
If you fail to have a will prepared, the state of New York will determine who will be in charge of winding up your affairs and distributing your assets, allocating the assets according to New York State Law. New York State law provides for who can petition the court to be appointed the “administrator” of your estate. The court may approve the appointment of your loved one but may require a bond be posted. The approved administrator will be issued “Letters of Administration.”
Once your executor or administrator has Letters Testamentary or Letters of Administration, he or she has the legal authority to handle your estate and must follow the distribution rules mandated by law, which may not necessarily result in your assets being distributed to those you would have chosen.
How Long Does the Probate Process Take?
The probate process will take a few months at best, and can drag for years at worst. Obviously, a contested probate will be a longer protracted process than an uncontested probate, but several important factors can affect the length of time it takes to probate even in uncontested probate proceedings. Some factors include the following:
- The cooperation of legal distributees of the estate. In New York State, there is an order of individuals that are entitled to inherit under the state’s laws. Even if they are not included in a Will, the state requires that they sign certain documents allowing the probate to proceed, or they have an opportunity to be heard in court. If there are any missing individuals, this will also be a cause for delay.
- Having the petition completed with all facts and details. If there are any inconsistent or missing details, or discrepancies between the petition and the death certificate, the petitioner may need to provide follow up documentation or affidavits which can slow the process down.
- The physical condition of the Will. The court will examine the original Will before accepting it as valid and “admitting” it to probate. If there is any question as to the validity of the will, for example, if staples or binding appear to have been removed, the process will slow down until it is investigated and the court is satisfied.
- Having beneficiaries or distributees that are minor or incapacitated. The court will appoint an impartial attorney, called a guardian ad litem (“GAL”) to represent and protect the rights of any minor or incapacitated party in the probate matter. It could take several months for the GAL to investigate and submit a report of their findings to the court before the court will admit the Will to probate.
How Do I Avoid Probate in New York?
If you die with something that you own titled in your name alone, your asset will likely need to go through the probate process before your heir can take ownership of that asset. If you don’t want your loved ones that survive you to have to go through the probate process to gain ownership of the assets you leave behind, there are ways you can make the process a lot smoother for them.
Some ways to avoid probate include designating beneficiaries. Your retirement accounts and your life insurance were likely set up with beneficiary designations. But, you may not be aware that you can likely designate beneficiaries on other financial accounts as well, such as investment accounts and regular savings accounts. The bank or financial institution may call it a “TOD” (transfer of death), “ITF” (in trust for) or “POD” (payable on death) You should periodically check your designations and update them when necessary (for example, after the death of a beneficiary or after divorce).
Another way to avoid probate is adding a joint owner with the right of survivorship. An asset with this form of title will result in the surviving owner automatically owning 100% of the asset when the first owner dies.
Naming a joint owner to your asset is not always a good idea, for several reasons, and you may have an asset that you can’t designate a beneficiary on, such as your home. In situations like that, you can avoid probate by transferring your home to a trust. A trust can be set up in many different ways and have many different advantages depending on how it is set up – from tax planning benefits to long term care asset protection benefits – but all trusts have a consistent characteristic that the assets funded in the trust during your lifetime will avoid probate upon your death.
There are many strategies utilized in the estate planning process. An experienced estate planning attorney can evaluate your personal situation and provide you with solutions to meet your particular needs.
What Happens When Your Will is Improperly Prepared?
When your will is not properly prepared and executed, it can lead to all sorts of unintended consequences, including high legal costs during the probate process. There is even the potential of having a will not being admitted to probate due to issues with the will. If any of the strict will execution requirements are not met, a will can be rendered invalid, and not be admitted to probate.
As an example, when a will is improperly executed, it can more easily be challenged. Perhaps the will was not properly signed by the decedent or had only one witness instead of the required two witnesses. New York has strict requirements that must be met before a will can be admitted for probate. Failure to meet those requirements can result in a plan that you did not wish for and cause undue hardship and high court costs for those you leave behind. Therefore, it is extremely important that your will be property prepared and properly executed.
When you work with an experienced New York estate planning attorney, there is no question regarding improper preparation or execution. You can rest easy, knowing your estate planning documents were all properly prepared, and there will be no unintended issues for your family to deal with after your death. While do-it-yourself is at an all-time high, printing out your own will from the Internet, or having a will prepared by a general practice attorney is simply not a wise decision. When your will is not done properly and professionally, the cost, in the end, will be high, and distributions could be made that are contrary to your wishes.
How We Can Help the Probate and Administration Process
If you are a named executor in a deceased person’s will or your loved one has passed away and you need assistance with administering his or her assets, you want to be sure the probate process will be as smooth as possible for your loved ones after your death. It is important that you contact a New York probate attorney as quickly as possible to help you through the process. Esther Zelmanovitz will work hard to ensure the probate process goes as smoothly as possible, and that all beneficiaries receive their inheritance in the most efficient manner. Most people are unfamiliar with the New York probate and estate administration process—the paperwork, the Court hearings, and any disputes which might arise during the probate process. This means that having an experienced probate and administration attorney guiding you through the process can make all the difference.
Esther Zelmanovitz values the moment when her clients can literally breathe a sigh of relief after having a significant legal burden lifted from their shoulders and guide them through the process during this most difficult time.She works hard to accommodate her clients, via home visits and evening appointments. While the Esther Schwartz Zelmanovitz, PLLC office is located in Great Neck, NY, those in Long Island, all the five boroughs of New York City, and across the state can benefit from the legal knowledge, skills, and experience of Esther Schwartz Zelmanovitz, PLLC. Contact Esther Schwartz Zelmanovitz, PLLC today for a comprehensive evaluation of your probate or administration issue or for your additional estate planning needs.