What is Probate?

Probate is a legal process that takes place after an individual dies, where the court validates and carries out the distribution of the deceased person's assets. The primary purpose of probate is to ensure that the deceased person's debts are paid and that their remaining assets are distributed to the rightful beneficiaries or heirs according to the terms of their will or, in the absence of a will, according to state law.

Here are the key components and steps involved in the probate process:

• Initiating Probate: The probate process typically begins with the filing of a petition in the probate court in the jurisdiction where the deceased person lived at the time of their death. If the deceased had a valid will, the executor named in the will usually initiates the process. If there is no will, the court will appoint an administrator to handle the estate.
• Notifying Stakeholders: Once the petition is filed, heirs, beneficiaries, and creditors are notified of the death and the initiation of probate proceedings. This allows interested parties to make claims against the estate or raise objections if necessary.
• Asset Inventory & Appraisal: The executor or administrator is responsible for creating an inventory of the deceased person's assets and obtaining appraisals when necessary. This step is crucial for determining the total value of the estate
• Settling Debts: The deceased person's outstanding debts, including taxes, are paid from the estate. The executor or administrator must ensure that all valid claims are settled before distributing the remaining assets to beneficiaries.
• Asset Distribution: Once debts are settled, the remaining assets are distributed to the heirs or beneficiaries according to the terms of the will or, in the absence of a will, according to state intestacy laws.
• Finalizing the Estate: After all debts are paid, and assets are distributed, the executor or administrator files a final account with the probate court. This includes a record of all transactions related to the estate. Once the court approves the final account, the estate is considered closed.

It's important to note that the probate process can be time-consuming and may involve court fees and other expenses. Additionally, the details of probate proceedings can vary by jurisdiction, and some estates may qualify for simplified or expedited probate procedures.

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Types of Estate Planning Tools in New York

Building an estate plan takes more than writing your will, which is important but has certain limitations. A comprehensive estate plan will coordinate multiple documents that work together to accomplish your objectives. Many people do not realize the extent of what these powerful instruments can facilitate when properly implemented. Our team at Raiser & Kenniff, P.C. can help you explore your options and develop a custom plan.

Our New York estate planning attorneys can assist you with many types of documents and tools, including:

• Your Will. In your last will and testament, you decide who will receive your assets, who will serve as your executor, and who will take care of your minor children. Your will is a key piece of your estate plan, but it is not necessarily the most effective tool in the estate planning arsenal. Your will is public, and its contents are subject to probate. In many cases, wills can also be easily contested, which will considerably delay the distribution of estate assets.
• Trusts. A trust can facilitate a more efficient transfer of assets to beneficiaries without the involvement of a probate court. Revocable living trusts can accomplish many of the same tasks as your will, and they can be changed throughout your lifetime. Irrevocable trusts cannot be changed once created, but these instruments are used in service of other goals, such as asset protection or estate tax avoidance.
• Powers of Attorney. A power of attorney document allows the principal to authorize a trusted agent to act on their behalf within a specified scope. For purposes of estate planning, many people choose to use “springing” powers of attorney, which means agents only receive their authority when their principals become incapacitated.
• Advance Directives. You can provide health care instructions for situations in which you become incapacitated in your advance directive, which is also sometimes called a living will. Many people authorize a medical power of attorney to advocate for them using the instructions left in their advance directives.