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Understand the New York Probate Process and Be Better Prepared to Create Your Own Estate Plan Which Will Someday Be Probated
The Law Offices of Barton P. Levine www.bartonlevine.com
Chances are great that at some point in your life you will be involved in the probate of an estate. You may be nominated as the executor of someones Last Will and Testament, appointed as the administrator of an intestate estate, or find yourself to be the beneficiary or heir of a decedents estate. Even if none of those scenarios come to pass, you should still have a basic understanding of the New York probate process so that you are better prepared to create your own estate plan which will someday be probated.
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of the estate. Both roles (executor and administrator) include the same duties and responsibilities the only real difference is how the individual comes to be appointed. The job of the executor/administrator is to oversee the entire probate process. Depending on the size and complexity of the estate, the duties of
the executor/administrator can be minimal or extremely time consuming and complicated. Because the probate process frequently involves complex legal issues from various different areas of the law an executor/administrator usually retains the services of trusts and estates attorney to assist during the probate process.
The individual you appoint as executor serves not only as the executor of your Will, but as the executor of your entire estate in most cases. In other words, your executor does not simply read your Will to beneficiaries and walk away. Instead, your executor is typically in for months, even years, of work after your death.
BENEFICIARY OR HEIR?
When a Will was left behind, the individuals or entities receiving bequests under the Will are referred to as beneficiaries. When the estate is an intestate estate, anyone who has a legal right to inherit under the laws of the State of New York is referred to as an heir. In an intestate estate proceeding, the court will have
to legally determine who the heirs are of the estate, adding another step in the probate process.
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ESTATE ASSETS
Once the probate process has begun, the executor/administrator must immediately locate all of the estate assets. Once located, the assets must be inventoried and valued. How this is accomplished will depend on the asset. Real property, for example, may be valued by obtaining a date of death appraisal from a licensed appraiser. Financial accounts, retirement funds, and investment accounts may be valued by looking at statements from the date of death. Personal property may need to be appraised by a professional estate appraiser. Ultimately, the executor/administrator must create an inventory of all assets, along with values, to submit to the court.
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terms of the Will. Instead, a Will contest must allege that the Will was signed under duress, the testator did not have the requisite capacity, fraud was involved, or other similar allegations. The executor/administrator must defend the Will in court if it is challenged. If the court ultimately declares the Will to be invalid then the court will look to a previously executed valid Will to probate the estate, if one exists. If no previous Will exists, the estate will be probated as an intestate estate.
TERMINATING PROBATE
After all estate property has been inventoried and valued, all creditor claims addressed, and all challenges to the Will litigated, the executor/administrator must prepare and pay any unpaid personal taxes, if any, and estate taxes due at the state and federal level. A final report is then filed with the Surrogates Court. Once the court reviews and approves the final report, the executor/administrator will then effectuate the transfer of all remaining estate property to the intended beneficiaries or heirs of the estate.
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If you find yourself involved in the New York probate process at some time in your life, chances are you will have unique questions. No two estates are the same, meaning that while a general understanding of the process is certainly beneficial, you should consult an experienced New York State trusts and estates attorney for specific advice.
REFERENCES
New York Courts, Probate Proceedings New York City Surrogate Court, Frequently Asked Questions New York Court Help, Small Estate Affidavit Program New York Life, Overview of the Probate Process
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