Probate Proceedings

Maintain Control

We often hear from clients how stressful and time consuming probate can be. Yet, probate provides a vital service to those who are no longer living in that its main objective is to satisfy the wishes of the testator, or Will maker. You may know that it is a misdemeanor in New York for someone to destroy a Will in New York. The reason for this is because we must respect the time and effort made by the testator to put his affairs in order prior to death.

Probate is the only way to safeguard the testator’s free will to give away his or her estate. Oftentimes, wrongdoers try to wrest a testator’s intent through threats or fraud. Other times, wrongdoers take advantage of a testator’s mental incapacity to have him or her sign a Will that runs counter to whom he or she would have given bequests to others.

There are numerous other issues, including due execution and whether a fiduciary bond must be posted, that the court resolves before it issues a Decree Granting Probate. In addition, probate provides a forum for certain stakeholders under the Will to have their day in court in order to contest the Will and to present evidence to the court that there are problems in the first place.

Don't Overwhelm Yourself

Get Familiar With Executor Duties

Serving as an executor in New York is a complex and demanding job that requires a high degree of organization and fiduciary responsibility. As a result, Executors are entitled by law to receive statutory commissions unless such are waived by the testator in the Will. Generally, Executors are required to fulfill the following tasks, as applicable:

Collect and inventory the Decedent's assets, including real estate, bank accounts, and personal property, some of which are difficult to identify and to locate.
Arrange for certain high value assets to be appraised in order to determine their fair market value at the Decedent’s date of death for tax purposes
Pay outstanding debts and taxes from the estate, including funeral expenses, medical bills, legal costs, and any remaining personal debts of the Decedent.

Address Estate Complexity

Do All Estates Go Through Probate?

Not every estate requires probate. In fact, one may have significant assets without having to probate a Will. For example, small estates or those with assets that have designated beneficiaries, like life insurance policies or retirement accounts, might bypass probate. Property that is titled on the deed as joint tenancy, or tenancy by the entirety might also escape probate. Most recently, New York allows for transfer on death deeds that bypass probate of real property held in the decedent’s name alone Finally, trust assets avoid probate because the trust itself is a private document that, if funded correctly, provides for seamless transition of assets. If a non-probate asset is involved, it passes automatically to selected beneficiaries who must only present valid ID and the Decedent’s death certificate to claim the asset.

Find Harmony

Preserve the value of business interests and sell depreciating assets
Notify creditors and settling debts
File the Decedent’s last income tax return and, if necessary, an estate tax return
Defend the estate against litigation claims
Distribute assets to beneficiaries
Preparing a formal or informal accounting to the beneficiaries and to the court

Mismanagement or failure to fulfill these duties can result in personal liability for the executor, so careful attention to detail and legal guidance is often necessary. Probate can take anywhere from three to four months to over a year or more to complete, depending on how complex the estate is or how difficult it is to find heirs.

An Empathetic And Efficient Approach

Probate is a complex court proceeding that requires the Executor to step into the shoes of the Decedent and to handle his or her affairs with the highest level of duty of care and loyalty. Oftentimes, the Executor is also grieving the loss of a loved one and cannot think clearly. Our office is dedicated to supporting our clients emotionally while being detached enough to provide sound legal advice. We also know how to best navigate each county’s Surrogate’s Court to efficiently get the exemplary results that our clients deserve.