Many individuals in New York are under the impression that probate is a bad thing. Some people take steps to ensure that most, if not all, of their assets do not have to go through probate by adding other signatories to bank and brokerage account, investing assets in a whole life insurance policy and establishing living trusts. These and other measures are designed to allow access by another individual upon the primary party’s death.
Probate is required in two situations. First, if an individual dies without a will and with all property titled in his or her name, probate is required in order to ensure that the assets go to the right person . The determination of the right person is made by the judge in the probate process according to state law.
The other situation where probate is required is when an individual dies leaving a will. The judge appoints a personal representative based on the terms of the will, and the personal representative settles debts and liabilities. The personal representative can inform the funeral service that the will is in probate, avoiding any delay in a funeral. Once all debts are settled and all creditors have had notice and opportunity to assert claims against the estate, the personal representative distributes the remaining assets as directed in the will.
In some cases, probate is actually less expensive than preparing a living trust. If an individual is engaged in estate planning, he or she may wish to consult a lawyer regarding the options for making sure that assets are disposed of as the individual wants at the time of death. The attorney may be able to advise the individual regarding the options that will satisfy the individual’s wishes , protect his or her estate and require the least expense and effort on the part of the surviving family.