In New York, probate is necessary for assets solely owned by the deceased and haven’t been legally bequeathed to a designated beneficiary. This means that if the property owner passes away without a written will, the probate court will distribute the estate according to the state laws. However, if the property holder leaves behind a will that stands uncontested, the probate has a limited role to play.
What Are Probate And Non-Probate Assets?
Assets that can go through probate include solely-owned bank accounts, vehicles, antiques, cash, art pieces, and jewelry. On the other hand, non-probate assets include:
Any bank accounts with named beneficiaries.
Life insurance policies with named beneficiaries.
Jointly held real estate.
Assets held in a trust.
Probate may also not be necessary if:
The total value of the estate is not big.
The estate only comprises non-probate assets.
The deceased left behind an estate plan to avoid probate.
A Quick Look at the Probate Process
Here is the process that follows:
The executor starts off the process by filing the probate petition. For this, they need a copy of the deceased’s death certificate and the original will. Both of these documents need to go to the Surrogate’s Court of the County, where the deceased individual last lived. The exact filing fee depends on the total size of the estate.
The next step is to itemize the inventory. The executor will collect the deceased’s physical and non-physical assets and appraise them as of the date of death.
The executor will also use the estate funds to pay any outstanding debts, liabilities, and taxes. If the estate doesn’t comprise enough cash, they might need to sell one of the assets.
The next step is to notify the distributees (legal heirs). The formal notice is called a citation, which also goes to the Surrogate’s Court. The estate is then distributed according to the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trust Law (EPTL).
Other than this, probate law also involves matter related to contesting a will, spousal rights, estate planning for blended families, and administration of a trust. If the process sounds overwhelming, try seeking help from a well-experienced probate attorney.
There is no better option in Brooklyn than The Law Offices of Joseph A. Ledwidge, P.C. Joseph Ledwidge attorney himself has around 20 years of experience in dealing with complex estate matters.
Try us out. We also offer services in Queens, Manhattan, and Jamaica.
Contesting a will is something you may need to do if your parent passes away and everything isn’t as you expected. For instance, if you had previously been the main heir to your parent’s estate and now it’s going to someone outside the family, that could draw some red flags. If you’re not sure that the will was changed appropriately, you can contest it. Here are a few things you need to know.
Establish legal grounds
The first thing you need to do is to establish that you have legal grounds to contest the will. One reason you might have is if you think someone influenced your parent in a way that was not fair to the family. For example, if your mom had dementia, a caregiver might have asked her to sign something when she didn’t understand what she was doing. This may also constitute fraud.
Improper execution is another claim you can make in court. It means that the will was not prepared correctly under the laws of the state, so it should not be upheld. A lack of capacity is the final item you can claim if you want to contest a will. If you claim your parent had a lack of capacity, it means that he or she was unable to make decisions at that time due to mental illness, disease or other causes.
Expect to pay some money
Contesting a will does cost money, and it may be worth looking into how much it will cost you to see if it’s worth the battle in court. It may not be worth pursuing the claim if you’ll lose money even if you win, for instance. Your attorney can talk to you more about the possibility of not only winning a case but what would happen if you lose.
Understand what you are getting into
With the right documentation, making a successful claim is possible. Wills, when created legally, are binding, but you have the right to contest one if something doesn’t seem right. Make sure your claim is a result of actual wrongdoing, and not one of sibling rivalry. You need to document everything you can to show that someone took advantage of your mother or father to prove your side of the case and to get the court to overturn the will. Video evidence or witness testimonies could help.
This takes time, and it can cause a rift in families if no wrongdoing took place. Be careful about what you choose to pursue if you don’t have evidence.
Many individuals believe that simply the act of writing a will and getting it notarized will allow peace to reign amongst family members after the testator has passed on. Yet in many cases, this couldn’t be farther from the truth, as it only sets the acrimonious process of probate in motion.
Consider a case where a parent with three adult children dies. One is relatively well-off and would like to preserve the family home, which is located along the shore. He envisions sharing the property with extended family for years, then eventually selling, and all of the siblings pocketing a handsome profit from the eventual sale decades later.
The middle daughter is married to a teacher, and they have three kids who will soon be facing college tuition bills. She is more inclined to sell, but can see the wisdom of waiting for a more robust housing market and likes the lure of a summer home by the shore as well.
The youngest son, however, has very different ideas. He’s got fire in his belly to jump on the start-up craze for the brain-enhancing chemicals market and needs some fast cash to make it happen. He’s jumped from job to job all his life and lived paycheck to paycheck. The only thing he cares about is getting his cut from the sale of his parent’s house.
What you now have is a scenario where, at best, it will become a two-against-one battle, and at worst, a three-way tug-of-war, as each sibling strives to achieve his or her own means to the end. No parent wants to be responsible for causing such rancor and chaos among family members.
Put your assets in a revocable trust instead
To circumvent the probate process and maintain some semblance of control over your estate, a revocable trust is one option to consider. This is a type of contract that establishes an entity – the trust itself – where your assets will be titled in your name during your life. You then appoint the trustee of your choice to manage the trust after your death, which assures that you can hand pick someone who will honor your wishes.
A trust is certainly not your only option, and your family circumstances and financial picture will dictate the best possible estate planning scenario for your unique needs. Those who would like to learn more can contact an estate planning attorney to answer any questions.
As regular readers of our Queens probate and estate administration law blog know, we regularly cover topics that involve disputes over wills. In some cases, those disputes will include what is known as a will contest .
Here in New York, anyone who is affected by a will can challenge the will. The New York City Bar Association notes that there are a number of reasons for will contests.
One reason cited in will contests is that the person who made the will was not of sound mind at the time the will was written. In general, this means the person was unable to understand the practical effects of the will.
Another reason for challenging a will is that not all proper procedures were followed in the making of the document. Examples of this would be that the will was not signed or witnessed.
We have all undoubtedly read of another will contest reason: undue influence. This circumstance can come about when, for instance, an elderly person comes under undue influence from a caregiver and writes a will that excludes their children in favor of the caregiver.
Duress: this situation involves “extreme pressure” exerted to make the person write a will that divides property against their own wishes.
It can be difficult to successfully contest a will. The process often puts family members on opposite sides of the dispute.
In some situations, a skilled negotiator can craft an agreement that resolves the matter. In other cases, litigation is required.
A skilled, experienced Queens attorney can help you achieve a favorable outcome in your situation. A confidential discussion of your circumstances with attorney Joseph Ledwidge can help you choose and pursue your best legal options in these matters.