The Probate Process In New York: Answers to Your Frequently Asked Questions
Probate is the court-supervised process of settling a deceased person’s estate. The probate process in New York generally involves filing a probate petition, giving notice to creditors, beneficiaries, and heirs, inventorying assets, paying taxes and debts, and distributing the estate. Here are some of the more common questions that we receive about probate from our clients.
What Are Probate and Administration?
Probate is the court-supervised process of settling a deceased person’s estate. It is overseen by the deceased person’s executor and the New York Surrogate’s Court. If someone dies without a will, the term probate is replaced with the term “administration, and the Surrogate’s Court will appoint an administrator to handle the deceased’s estate.
What Are The Implications of Dying Without a Will?
If you die without a will, this is called dying intestate. If you die intestate, the New York Surrogate’s Court will appoint an administrator to handle your estate. Without a will, your wishes for the disposition of your assets are unknown.
How Large Does An Estate Have To Be For Probate?
In New York, only estates valued at more than $50,000 are probated. Estates valued at less than $50,000 are considered to be small estates and can be handled through a process known as Voluntary Administration.
What Documents Get Filed In a New York Probate Proceeding?
In a New York probate proceeding, your Long Island probate attorney will file a number of documents, including a Probate Petition. The Probate Petition initiates the probate process and includes information about the deceased and his or her estate. The filing will also include your will and your death certificate. Additional documents that may be filed include heirship affidavits, waivers from next of kin, and certificates of service.
How Long Does The Probate Process Take In New York?
The probate process can take from 9 to 18 months, on average, in the state of New York. However, there are many variations on this amount of time. If there are will contests or other disputes, the probate process will likely take longer. Other factors that may increase the time to complete probate include if the deceased owns assets in multiple states, if beneficiaries live far away, and if the estate must file federal income taxes. Also, it’s important to be aware that an executor who is disorganized or who does not have a financial background can dramatically extend the time that it takes to complete probate.
What Is Valuation of Assets, And Why Is It Important In Probate?
Valuation of assets is the process of assigning a value to the decedent’s assets. Usually, this is done by identifying the fair market value of the asset. For example, a car’s value can be assessed by using Kelly’s Blue Book as a resource. Valuation helps in establishing the value of the decedent’s estate, and is important for purposes of capital gains and income taxes.
I’m A Beneficiary, And I Disagree With The Valuation of An Asset. What Can I Do?
If you are a beneficiary, it is important to carefully review the executor’s calculations regarding the estate’s assets, income, and liabilities. If you disagree, you can file an objection to the valuations with the Surrogate Court. To support your position, you should have:
- Professional evaluations
- Comparable sales date
- Expert testimony, or
- Other data supporting your valuation, such as actual financial receipts or records
What Are Other Disputes That Can Arise In Probate or Estate Administration?
There are a number of disputes that can arise during probate or estate administration. One of the most common is will contests. In a will contest, a party may dispute that the decedent lacked testamentary capability. This means that the deceased either lacked the capacity to make or change a will, or was subject to undue influence. Fraud and deceit may also be part of a charge that the decedent lacked testamentary capability. This means that the will was based on false information. Finally, a party may claim that the will was improperly executed due to failure to comply with the legal requirements needed to create a valid will in New York.
How Do I Initiate A Will Contest?
The first step in contesting a will is to file a petition in the Surrogate’s Court. The petition must be filed in the county where the deceased resided at the time of their death. It is important to act promptly, as New York law imposes strict time limits for contesting a will. Generally, a will contest must be initiated within six months from the time the will is admitted to probate. The petition should outline the grounds on which the will is being contested and provide any supporting evidence.
How Much Does It Cost To Probate A Will?
In New York, probate costs can vary widely, but generally include court filing fees, legal fees, and executor fees. Court filing fees range from $45 for estates under $10,000 to $1,250 for estates over $500,000. Legal fees vary widely and can be in the form of flat fees or hourly fees. Executor fees, usually a percentage of the estate (typically 3-5%), are another potential cost.
How Can I Avoid Probate in New York?
There are several strategies in New York for avoiding probate. One common strategy is to put your assets in a trust. You can also hold your assets jointly with another person with a right of survivorship. Another option is to designate beneficiaries for accounts such as checking, savings, and investment accounts.
Contact Davidow, Davidow Siegel & Stern, LLP
Death is part of life, and it makes sense to be as well prepared as you can be to take the burden off your loved ones. Preparing your will, identifying your executor, and naming your beneficiaries is a loving and thoughtful way to make this happen. Here at Davidow, Davidow, Siegel & Stern, we have more than one hundred years of experience helping our clients with their estate planning. Contact us today to learn more about how we can help you.