What Happens to Real Property in Probate?


Often, our real property is what we’re worried about the most when it comes to estate planning – the family home, the land it’s on, as well as anything else tied to the land we own. For most families, a home is their most valuable asset. Any estate plan should be heavily focused on transferring this asset as safely and securely as possible to the designated benefactors. In reality, houses and other real property are often not properly taken care of through a quality estate plan, which may lead to some unfortunate outcomes. 

In New York, those that pass away without a will or have assets not taken care of by another estate planning document such as a trust will have those assets pass through probate. In probate, the court will determine the distribution of these assets to the necessary descendants. If there is a surviving spouse and no other descendants, the process is relatively simple; the surviving spouse will receive the whole of the estate. When there are multiple descendants, however, the probate process can become complicated quickly, and may lead to some conflict between potential beneficiaries.

How Do Courts Determine the Distribution of Assets?

If there are both descendants and a surviving spouse, the spouse will receive $50,000 of the estate, and the remaining assets will be split in half, with one half again going to the surviving spouse and the other being distributed between the descendants. If there is no surviving descendant or spouse, the assets will be distributed to other family members in a specific order of succession. Finally, if there are no surviving family members, the estate will transfer to the State of New York.

Real property, however, often cannot be split between beneficiaries, especially if it makes up most of the assets in probate. In most cases, when real property faces intestacy, the court will nominate an executor who must sell the property. It is then their role to sell the real property, and the results of the sale will then be distributed according to the process described above. Descendants have the right to object to the sale, but without a will, it is very difficult to establish any right to the property that the court will uphold.

While beneficiaries do receive some assets in the end, this often isn’t the result anyone wanted. In most cases, we want to ensure that our real property is passed down to our loved ones in due order, instead of sold and divided up. Without a solid estate plan, the distribution of these assets often isn’t as desired. As such, a quality and effective estate plan is always necessary to ensure that your wishes are followed. For an estate plan that will ensure your property is passed on correctly, contact Ledwidge & Associates today.

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What Happens to Real Property in Probate?

Ledwidge & Associates

Ledwidge & Associates, P.C. in New York City has years of experience helping clients create estate plans that fit their needs. We have the experience and resources to handle your critical legal matters with the utmost care and attention to detail.
What Happens to Real Property in Probate?

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