When Is Probate Not Necessary In New York?

A trustee signing a living trust and helping a property holder avoid probate

When you’re planning your estate, your goal should be to spare your family and legal heirs the hassle as much as you can. The probate court proceedings could be very extensive, costly, and complicated. If you’re based in New York, here’s when you can avoid probate:

Joint Ownership

If you jointly owned property with your deceased spouse, the probate process won’t apply if you had ‘rights of survivorship.’ In this case, the surviving spouse automatically becomes the owner after one of the owners passes away. However, you still might need to present some paperwork to the court to prove that the surviving owner now holds the property.

  • Joint tenancy: You’re called a joint tenant if you and your partner (married or not) own an equal share of the property. Joint tenancy applies to real estate, bank accounts, valuables, and vehicles.
  • Tenancy by the entirety: Unlike joint tenancy, this form of ownership is only applicable to married couples if their real estate is co-owned.

The last will of an individual

Payable-On-Death

A POD designation (payable-on-death designation) applies to bank accounts, certificates of deposits, and savings accounts in New York. Under this system, you have full control and full rights over the money in your accounts until your death. After your death, the same right passes on to the beneficiary automatically without going through the court proceedings.

Transfer-On-Death

Transfer-on-death or TOD applies to your securities and financial assets. You can register your brokerage accounts, bonds, and stocks in a TOD form in New York. You also need to name a beneficiary in the same form. The designated beneficiary will automatically inherit your financial investments after your death. Instead of going through the probate proceedings, the beneficiary will directly deal with the brokerage company.

According to the state law of New York, TOD deeds don’t apply to vehicles or real estate.

Living Trust

Any assets placed in a living trust don’t need to go through probate. You can hold almost any asset in a living trust, including bank accounts, real estate, and vehicles. All you need to do is create a trust document, assign a successor trustee, and transfer your estate ownership to the trust. After this point, the property’s ownership will be controlled in terms of the trust. After your death, the successor trustee can transfer the assets to the trust beneficiaries without court proceedings.

The Law Offices of Joseph A. Ledwidge, P.C. helps families simplify the probate process in Brooklyn, Queens, and Jamaica. Joseph Ledwidge attorney has around 20 years of experience in dealing with the most complicated probate cases.

Speak with us for a free consultation.

 

An Overview of the Probate Process in New York

An estate lawyer in Brooklyn helping a client write her last will.

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.
  • Retirement accounts.
  • 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 deceased individual’s last will.

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).

Seek Guidance from a Probate Attorney Brooklyn

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.

An Estate Planning Checklist for Beginners

A house in Brooklyn passed on to a beneficiary through a probate

Preparing for the end of your life sounds challenging, but it’s something that you should do, notwithstanding. Having a well-thought-out will is not just essential for seniors but for the youth too. Life is uncertain. The best you can do for your children is to plan your estate carefully and intelligently.

Let’s cover the basics of estate planning:

Make a list of your belongings.

To get started with your estate planning, you need to begin to itemize your inventory or belongings. This may take a few days. Grab a paper and pen and start looking around for all the tangible and intangible assets you own. After you’ve enlisted the assets, you should also mention their estimated market value, date of purchase, purchase price, appraisal and valuation reports, and the number of years it’s been with you.

Your tangible assets may include real estate, property, homes, precious metals, ornaments, jewelry, antique collectibles, trading cards, cars, motorcycles, and boats. Intangible assets mostly comprise your investments, receivables, and bank accounts. Common examples of intangible assets include retirement plans (IRAs), savings accounts, mutual funds, stocks, bonds, certificates of deposits, treasury bills, and business ownership. When you’re enlisting these items, write down account details and the company/institution where your investments are held.

Consider Your Family’s Needs.

Your estate planning will also revolve around some important family decisions. If your children are still young, you need to name a guardian and backup guardian (if the primary guardian doesn’t survive). This will ensure that your children are taken care of and help avoid costly court fights. You don’t need to assume that your immediate relatives will share your child-rearing goals. Document your childcare-related wishes as explicitly as you can.

If you’ve remarried and don’t name a guardian, the child’s custody automatically goes to the surviving biological parent. If you’re not on good terms with your ex-spouse and don’t want this to happen, specify it in the will.

A probate courthouse

Review the Beneficiaries.

When you’re writing your will, don’t leave any beneficiary sections blank. In this case, when the will goes through probate, the assets will be distributed according to the estate laws. We also recommend contingent beneficiaries that get the property if the primary beneficiary dies before you do.

If you’ve remarried, you might want to update the beneficiary list. Let’s say your ex-spouse is still a beneficiary on your life insurance policy; your current spouse will not get a penny from the policy payout. The same goes for your retirement account. Keep track of and update the beneficiary designations as needed.

The last step is to select an estate executor who will in charge of administering the last testament. Choose someone competent, responsible, and possesses good decision-making ability. Your spouse isn’t always the best choice, especially if losing you takes a toll on their emotional well-being.

If the process sounds complicated, we recommend seeking help from a well-qualified estate and probate lawyer. If you’re based in Brooklyn, Queens, or Manhattan, and are looking for Queens Probate lawyer or Brooklyn Probate lawyer there is no better option than the law office of Ledwidge & Associates, P.C. We have over 20 years of experience in handling complex probate cases. You can contact online or give us a call at 347-395-4799 to arrange a consultation with an experienced New York probate attorney.

 

Questions for a Probate Attorney: How Does the New York Probate Process Work?

The New York probate process will vary, depending on whether the deceased had a will or trust or had no such documents expressing their last wishes. After someone dies, their assets, property, and other belongings, which are called their estate, have to be distributed to surviving loved ones, called heirs.

In addition, any outstanding debts must be paid. There are also estate taxes that have to be paid. To accomplish this, the probate process is used in New York through what is called the Surrogate Court. The role the Surrogate Court plays in the probate process will vary, depending on the documentation or lack thereof the deceased had.

Business man pointing the text: What Are The Rules?

Ultimately, their primary role is to oversee the estate and approve distributions to the appropriate parties. Before any distributions can be made to charities and surviving loved ones, the estate must first pay outstanding debts and estates taxes.

If the deceased had a will or trust, then they should have named an estate executor. This person is responsible for performing specific tasks to distribute the estate. They will obtain permissions from the Surrogate Court as needed throughout the probate process.

If the deceased did not have a will or trust or did not name an executor, the Surrogate Court will appoint an estate administrator. The administrator has similar responsibilities as an executor. If the surviving loved ones do not believe the estate is being handled correctly, there are specific legal actions they can take, such as contesting a will or requesting the removal of the executor.

What Steps Are There in New York Probate Process?

In general, there are three basic steps in the New York probate process, as follows:

Step 1: Inventory and Appraise the Estate

The executor will need to review the deceased’s assets. They have to make an inventory of all property. Afterward, they must assign a monetary amount to each item, which could require expert appraisals. The overall objective is to determine how much the estate is worth.

Step 2: Satisfy Outstanding Debts and Pay Taxes

The next step is to pay any outstanding debts the deceased owed. This could include loans, credit cards, and other financial obligations. The executor will also pay estate taxes owed. If there is not sufficient cash to pay all debts and taxes, the executor can liquidate assets to ensure they are paid.

Step 3: Distribute the Remaining Estate to Heirs

If there is a will, then the executor makes distributions based on the last wishes of the deceased. In some cases, where assets had to be liquidated, the heirs may not receive the assets or property promised in the will.

If there is a trust, the probate process will vary slightly, depending on the type of trust the deceased had. If there was no will or trust, then the court-appointed administrator takes care of each of these steps.

senior adults discussing important topic

Please keep in mind, this is just an overview of the process. New York State probate rules, the size of the estate, and other factors that could require additional steps are not covered here. Nor should the information presented here be considered legal advice. This is why it is important to make a list of questions for a probate attorney to get the answers and legal advice you need.

A probate attorney can also help with the execution of a will or trust, as well as provide guidance for the executor during the probate process. For further legal advice and assistance with the New York probate process, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!

For What Reasons Do I Need a Probate Attorney in New York?

In New York, when a loved one dies, their estate, including all bank accounts, investments, assets, and real estate must go through the New York probate process. This process will occur whether the loved one left a will or died without one.

Sometimes the probate process is still needed if a trust was not properly created. The process can vary and be rather complex depending on several different factors, such as:

• Is the will clearly written with the intentions of the deceased?
• When was the will last updated?
• What is the current marital status of the deceased?
• If there were recent updates, were they made by a person of sound body and mind?

Even when the deceased makes their intentions very clear about their wishes for after their death, it does not always alleviate potential tension and disagreements between surviving family members.

family giving their last goodbyes at the cemetery

To address certain issues and concerns, it is highly recommended to seek assistance and guidance from a qualified probate attorney. Whether you are the executor of the estate or concerned your loved one’s wishes are not being carried out, having an attorney on your side can be beneficial.

Other reasons why you need a probate attorney in New York include:

1. Submitting contracts during probate that are legally binding and valid.

For instance, a parent leaves their vacation home to their four children. Two of the children have no interest in the home, while the other two want to share it equally. A contract would be needed to sell the interest in the vacation home to the children who want to retain the home.

2. Addressing conflict and contesting of the will.

Sometimes surviving family members can contest the will or create conflict between siblings and other relatives. Conflict is especially common in situations where the deceased was married multiple times and had children with each marriage.

Another case where conflict can arise is when someone believes they should be entitled to more than they were left. For instance, the deceased verbally promised them a certain possession or an amount of money. Yet, when the will is reviewed, those details are not documented anywhere.

3. Making the New York probate process easier.

The probate process requires a review of the court to ensure everything is in order and the will is valid. Additionally, the probate process addresses specific issues, such as:

• Assigning an executor if one is not named in the will or trust.
• Ensuring proper appraisal of all assets in the estate.
• Paying any outstanding creditors.
• Collecting on any debts owed to the estate.
• Filing the will or trust with the probate petition with the appropriate court in New York.
• Ensuring assets and wealth are distributed correctly to the right beneficiaries, charities, and legatees.

Furthermore, having an attorney is vital if a loved one did not leave a will or trust or their intentions are not clear. It is equally beneficial to hire a probate attorney in New York when a loved one died without a will or trust to ensure proper distribution of their estate.

4. Providing assistance to create a legally binding and sound will or trust.

Young couple and insurance agent going through paperwork on a meeting

Taking the time to create a will or trust can help avoid conflict, make your intentions clear, and provide detailed instructions on how you want your estate distributed after your death. Obtaining help from a qualified probate lawyer ensures your loved ones will not have to guess what you wanted and can prevent most conflict.

For assistance in creating a will or trust, or representation during the New York probate process, please feel free to contact Joseph A. Ledwidge, P.C. at 718-276-6656 today!