Probate is the process of bringing a Last Will and Testament to the Surrogate’s Court and asking for them to prove its validity. Once the court declares that the Will is valid, they issue something called Letter Testamentary to the Executor. This allows the executor to step into the shoes of the decedent and handle their financial affairs.
What should I know about Probate?
In order to probate a Will, you need to give a copy of that Will to the people that would inherit if there were no Will. Those people have a right to object to the Will. For example, let’s say I have no close family and my closest heirs are my nephews who I haven’t spoken with in twenty years. In my Will, I leave everything to my neighbor who has been my closest friend for forty years. Even though I haven’t spoken with my nephews in years, they would get a copy of my Will and have the right to object to my Will being offered for Probate.
How long does Probate take?
An average uncontested probate takes approximately a year to close out the estate.
What are the Phases of the Probate Process?
I tell all my clients that probate is a three-phase process. The first phase is getting the executor appointed and having the court issue Letters Testamentary. The second phase is for the Executor to marshal the assets and pay the liabilities of the person who passed away. The final phase is to account to the beneficiaries and to distribute the assets according to the Last Will & Testament.
What Happens in Phase One of the Probate Process?
Phase one is to have the Executor appointed. This requires submitting the original Will, death certificate, and accompanying documents to the Surrogate’s Court. Gathering all the necessary documents to submit from all parties and having the court review the documents will usually take a few months. Once the Surrogate’s Court declares the Will to be valid they issue Letters Testamentary to the Executor. Once Letters Testamentary are issued, we move into phase two of the Probate process.
What Happens in Phase Two of the Probate Process?
Once the courts grant the Executor Letters Testamentary, it is time for the Executor to get to work. The Executor’s job is to marshal the assets and pay the liabilities of the estate. This step involves getting a tax Id number called an EIN number, setting up an Estate bank account, Transferring the person who passed aways assets to the estate account, possibly selling property, determining the liabilities of the decedent, and handling taxes. The most important step of being an Executor is keeping detailed records. Every penny that was brought into the Estate should be accounted for. Many Executors make critical mistakes in this phase of the probate process.
Miller & Miller Law Group is here to ensure that the Executor is protected and fulfilling their duty to the beneficiaries listed in the Will.
What Happens in Phase Three of the Probate Process?
The last step of an estate is everyone’s favorite – distribution. After all the estate’s property has been marshaled and liabilities have been paid, the executor can begin the process of distribution according to the Last Will and Testament. The executor should wait seven months for any creditors to submit their claims to the estate. It also may be advisable for an executor to withhold some funds as a precaution in the event another claim was to surface against the estate. In this phase, the executor provides an accounting of all the work they did to the beneficiaries and the proposed distribution from the estate. If the beneficiary agrees, they sign a release and receipt which releases the executor from liability by the beneficiary. Once all release and receipts are received the Executor distributes the funds.
Miller & Miller Law Group PLLC, is here to assist in all three phases of Probate. For more information or to schedule a consultation feel free to give us a call at (718)875-2191 or visit our website at www.nycelderlawyers.com.
How do I avoid Probate?
Probate can be time consuming, expensive, and difficult. Probate can be avoided by placing your property into a trust. If the trust is revocable, I can control the assets in the trust. Upon my passing my designated successor trustee will step in and handle the assets within the trust.
Let me provide an example. I create a trust and I put my house, brokerage accounts and bank accounts in the trust. During my lifetime, I use my bank accounts like I normally would. Upon my passing, my wife takes control of the trust and distributes the house, brokerage accounts, and bank account to herself. She would be able to take control of the trust just by providing a death certificate and a copy of the trust. Now if I passed away with a Last Will & Testament instead of a trust, she would have to hire an attorney to guide her, pay the court filing fee which could be in excess of $1,250, pay a Guardian Ad Litem who will investigate the Will on behalf of my minor children, and wait months for the court to finish their review of my Last Will & Testament.
This all would be avoided by me creating a trust and will save my family time and money.
Should you have any questions, contact Miller & Miller Law Group by calling us at 718-875-2191 or visiting our website at www.nycelderlawyers.com.
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