When Do You Need a New York Probate Lawyer?

There are basically two situations that will require consultation with a New York Probate Lawyer. If you are doing your own estate planning, you’ll want to the best probate lawyer in New York to help you set it in order. If you have had a loved one who recently passed away, you may have some complicated questions. You’ll want to discuss a number of questions and situations with a NY probate attorney who can give you the right answers and help you work through the process.
  • Probate and Estate Administration

    Administration and probate are somewhat similar as far as the court proceedings go. Either way, an individual is appointed to handle an estate in the case of one’s death. The main reason for appointing someone to this role is so that the decedent’s assets are properly transferred to the beneficiaries of the estate. Probate takes place in the “Surrogate’s Court.” It is handled in the county in which the decedent died. The estate is assets, possessions, and property that were owned by the deceased. An executor or representative is appointed by the court. The “letters testamentary” are the legal documents used to make the person the executor. They are the person who is legally responsible for paying any taxes and bills and then distributing any assets to the heirs, or beneficiaries. If it’s not handled properly, the executor can be held accountable and risks legal liability.
  • Probate Proceedings

    Probate proceedings are designed to reduce the chances of someone committing fraud after someone has passed away. The process is very involved and detailed. A New York probate lawyer helps identify and appraise any property left behind and ensures that creditors and taxes are all paid once someone dies. After these responsibilities are taken care of, then the court will issue an order that states the estate is closed. However, not every estate has to go through the detailed probate process.

  • Estates that don’t require probate in NY

    Every estate does not require a probate lawyer in New York. Some estates are considered to be a “small estate” and won’t require court supervision. Secondly, some types of assets transfer automatically following the death of the owner. This type of asset is not subject to probate.

    The most common types of assets that pass on to others without the need of probate include:

    Joint Tenancy.

    Also called, the “right of survivorship” joint tenancy assets automatically pass to the surviving joint tenant should one die. One example is if a house is owned by two persons as joint tenants and one of them passes away, the other person now owns the whole house.

    Tenancy by Entirety.

    This may also be called “community property with right of survivorship.” This type of property ownership will function as the joint tenancy in the sense that the survivor automatically owns the property when the other tenant dies, but it is only available to married couples.

    Beneficiary Designation.

    When someone signs up for a retirement account or a life insurance policy, they have to name a beneficiary. When the policy owner dies, the beneficiary is entitled to the assets pre-determined in the account or terms of the policy.

    Transfer/Payable on Death Accounts.

    Accounts held by banks and brokerages can have a designated beneficiary. The account owner fills out the proper forms and designates who will receive the assets in the account(s) after they die.

  • Steps for Settling an Estate in Probate in New York

    Probate in New York is required for estates which exceed the small estate’s threshold and there is either not a will or a will without a living trust. Probate is necessary before the estate can be transferred to the heirs or beneficiaries.

    The general steps required for settling an estate through probate in New York include:

    The will has to be filed in the Surrogate’s Court in the county the decedent lived in.
    The will also has to be filed within a reasonable time period following the death.
    At the same time, the Petition for Probate must be filed.

    This filing will request the appointment of the executor. If there is not a Will, a Personal Representative of the estate will be appointed by the court. Notice will be given to all beneficiaries and heirs.

    The court then issues “Letters Testamentary” to the Personal Representative or executor.

    This is what gives the executor the legal authority to act on behalf of the estate.

    Creditors have up to seven months to make any claim against the estate.
    An inventory of all the assets of the estate must be filed within six months after an executor is appointed.
    After all the taxes and creditors have been paid, a New York probate lawyer will file a Petition to close the probate.
    The court then issues an order which distributes the property of the estate to the beneficiaries.
    The executor can receive financial compensation for their services.

    This is based on the size of the estate and the fees are subject to income tax

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