Probate is often misunderstood and maligned. Some people believe that having your estate subject to probate is worse than dying, but what’s all the fuss about? Let’s take a closer look at probate and how it works under New York law.
Understanding Probate
Probate is a legal process in which the ownership of property is determined when a person dies owning property. If the deceased person left a will, the will must be filed with the appropriate office, and the executor of the estate will be sworn in. Notice must be given to all persons who have an interest in the estate, including creditors. Anyone who wishes to contest the will may do so within a prescribed time period.
Is There A Will?
Under New York law, grounds for contesting a will may include lack of testamentary capacity, undue influence, or improper execution. If the decedent did not leave a will or if the will is found to be invalid, the next rightful owners of the decedent’s property are determined by state statute. A surviving spouse is entitled to a share of the estate, but the heirs of a decedent are generally first children or more remote issue, then parents, and then siblings and their issue.
Contrary to popular belief, if you die without a will, your property does not automatically go to the state. The probate proceeding is still necessary to determine who the heirs are and in what proportion they take the decedent’s property. Creditors are also given the opportunity to come forward with their claims.
So, What’s So Terrible About Probate?
Under New York law, probate itself is not expensive. The executor, administrator, and any professionals engaged to assist with the estate settlement process are entitled to be compensated, but their fees must bear a reasonable relationship to the work and responsibility involved. High fees are the source of most of the horror stories one hears about probate. The key is to be an educated consumer of legal services when planning your estate or serving as an executor or administrator of an estate.
In Summary…
Probate is a simple and logical process. However, it’s important to work with professionals who charge fair and reasonable fees. By being an educated consumer, you can ensure that you and your loved ones are protected and receive the services you need without unnecessary expenses.
