Losing a loved one is never easy, and dealing with legal matters while grieving can feel overwhelming. Probate is the court-supervised process of distributing a deceased person’s assets, and it often comes with questions and confusion. Understanding how probate works can help you prepare for the future and ensure your wishes—or those of a loved one—are carried out smoothly.
At Miller & Miller Law Group, we guide clients through probate, helping them navigate the legal system with confidence. In this blog, we’ll cover the top five things you need to know about probate to make informed decisions about your estate or that of a loved one.
1. Probate is Only Necessary if You Have a Will
A common misconception is that probate applies to everyone, but that’s untrue. If you have a will, your estate will go through probate to ensure the court recognizes the will as valid and that your wishes are carried out. However, if you do not have a will, the process is called administration rather than probate.
Without a will, New York State law determines who will inherit your property based on intestacy laws. This means the state decides who gets what, regardless of what you may have wanted. If you want control over where your assets go, having an estate plan, including a will or trust, is essential.
2. Probate Does Not Control All of Your Assets
Probate only applies to assets that were in your name alone at the time of your passing. Many assets do not go through probate, including:
- Jointly owned property – If you co-own property with someone else, such as a spouse, ownership may automatically transfer to the surviving owner without probate.
- Beneficiary-designated accounts – Life insurance policies, retirement accounts, and payable-on-death (POD) bank accounts pass directly to the named beneficiary.
- Assets held in a trust – If you’ve set up a revocable or irrevocable trust, those assets bypass probate and go directly to your beneficiaries.
Understanding which of your assets would go through probate versus passing outside of probate can help you plan effectively and ensure your loved ones avoid unnecessary legal hurdles.
3. A Copy of Your Will Must Be Given to Your Closest Heirs
When your executor submits your will for probate, they must provide a copy to your closest heirs, even if they are not named beneficiaries. This includes individuals who would have inherited under intestacy laws if there were no will.
This means that an estranged child, spouse, or other family members must receive a copy and have the right to object to your will. If a family member disputes the validity of your will, they can initiate a will contest, which can lead to lengthy and costly legal battles. Proper estate planning, including discussing your wishes with your heirs in advance, may help reduce the risk of disputes.
4. The Court Requires the Original Will—Copies Usually Won’t Work
One of the most crucial aspects of probate is that the original, signed, will be submitted to the court. A photocopy is typically not sufficient. If the original will cannot be found, New York law assumes that the deceased person intentionally destroyed it, revoking it.
Overcoming this presumption requires a lost will proceeding, which is difficult and time-consuming. If you want to ensure your will is honored, it is crucial to keep it in a safe but accessible location. Some options include:
- A fireproof safe at home (with your executor knowing the location and combination).
- A secure estate planning attorney’s office.
- A safe deposit box (though access can sometimes be tricky after death).
5. Probate is Time-Consuming
Probate is not a quick process. Even in a best-case scenario, it can take months to complete. Once everything is submitted to the court, the file may sit untouched for weeks or months due to the court backlog.
The probate process can drag on if anyone contests the will for years. Disputes, missing documents, and court scheduling delays can make probate a frustratingly long ordeal.
Setting up a trust can be an excellent alternative for those looking to avoid probate entirely. Trusts allow assets to pass directly to beneficiaries without court involvement, saving time and legal costs.
Planning Ahead is Key
Probate can be a long and complex process, but with proper estate planning, you can minimize stress for your loved ones. If you have questions or need assistance, please get in touch with us today for a comprehensive consultation. We’ll help you understand your choices and create a plan that provides security and peace of mind. Be sure to mention this article to focus on your specific needs.
This article is a service of Miller & Miller Law Group. We do not just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love.
