Probate & Estate Administration
When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If your loved one owned his or her assets through a well drafted and properly funded living trust, it may be that no court-managed administration is necessary. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.
Every probate is unique, but most involve the following steps:
- Filing of a petition with the proper probate court.
- Notice to heirs.
- Petition to appoint an Executor (in the case of a Will) or Administrator (if there is no will) for the estate.
- Inventory and an appraisal of estate assets by the Executor or Administrator.
- Payment of estate debts to rightful creditors.
- Sale of estate assets.
- Payment of estate taxes, if applicable.
- Distribution of assets to heirs.
FREQUENTLY ASKED QUESTIONS
What happens if someone objects to the Will?
Filing an objection to a will, sometimes leading to a “will contest,” is not usual. In order to contest a will, one has to have legal “standing” to raise objections, usually meaning that the person objecting to the will would receive a benefit if the will is successfully challenged. In addition to disputes over assets, will contests can be a quarrel over the person designated to serve as Executor.
Does probate administer all property of the deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries listed in the will.
Certain types of assets are what is called “non-probate assets” and do not go through probate. These include:
- Property in which the deceased owns title as “joint tenant with right of survivorship” with another person. Such property passes to the co-owners by operation of law and does not go through probate.
- Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
- Life insurance policies with designated beneficiaries.
- Bank accounts with “pay on death” (POD) or “in trust for” designations, or which are jointly owned with “right of survivorship.”
- Property owned by a Revocable Living Trust. Legal title to such property passes to successor trustees without having to go through probate.
Does one get paid for serving as an Executor?
Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased estate. In addition, they may be entitled to statutory fees, which vary from location to location and on the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist with Executorship responsibilities.
How much does probate cost? How long does it take?
The cost and duration of probate varies depending on a number of factors, such as the value and complexity of the estate, the existence of a will, ability to locate relatives and the location of property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate may add cost. Common expenses of an estate include executors’ fees, attorney’s fees, accounting fees, court fees, appraisal costs, and surety bonds. Most estates are settled though probate and administration within about 9 to 18 months, assuming there is no litigation involved. However, with the current on-going fiscal budget cutbacks in the NY State Courts, many probate matters are taking exceptionally long. We feel this is another factor leading to the more frequest use of Revocable Living Trusts in favor of Wills.