The term probate gets thrown around quite often. It goes hand in hand with estate planning, but do you know what it means? This article will discuss the basics of probate and acts as a stellar introduction to the important concept.
Defining Probate
By definition, probate is the legal process of proving a will and testament. A will must be legal on both a federal and state level to uphold in a court of law. Probate can also manifest when there is no will in place as a probate court ultimately makes the decision on what assets get distributed where.
For estates of reasonable size, the probate process can take as little time as a few weeks, but for more sizeable estates, it can take several years. If an individual presents a valid claim to any singular or collective set of assets in an estate, they have ground to contest the will with a probate court.
To refute popular belief, having a will in place doesn’t automatically mean you avoid probate, but by having a comprehensive estate plan and will, you can guide probate in a more favorable direction and make it easier for all parties involved. Certain assets aren’t required to be scrutinized under the probate proceedings. These assets include, but aren’t limited to, bank accounts, insurance policies, and retirement funds.
When Does Probate First Come Up?
The probate process starts immediately upon determining that a deceased person has a will in place. When an individual passes away, any assets they have will become part of their estate unless another party acts as a co-owner. A key component in the probate process is how those assets are distributed to loved ones.
If a will is left, it automatically goes in front of a probate court where it is reviewed by a judge. If the decedent’s left a will, then it goes before a probate judge where the legality of the documents is determined and any terms presented can be contested. If no will is left and the deceased person’s will is left intestacy, the probate court is responsible for determining the rightful heirs to the estate and also negotiates any possible contestations.
After a will is deemed upholdable, the will’s appointed executor must execute the presented terms. In the case of intestacy or the executor declines the responsibilities required of them, the court selects an administrator who then manages the probate. Any fees accrued will be taken from assets directly tied to the estate.
Proof of Death
Before an executor considers presenting the will to a probate court, they should strongly consider obtaining a death certificate to prove that the decedent is actually dead. In some cases, the probate judge may even ask to see the document. The death certificate will also be required to claim any funds and assets doled out under a payable-on-death restriction as well as life insurance benefits.
The Costs of Probate
One reason to create an ironclad will is to save your loved ones from paying excessive legal fees. With a small estate, it’s possible that your beneficiaries won’t have to pay a dime, but your will must be impenetrable. The costs of probate differ by state, but a good probate attorney will be able to go over any associated fees with you.
In the state of New York, probate matters differ in price based primarily on the size of the estate. Fees typically include court filing fees, legal fees, appraisal fees, service process fees, and bond premiums. In New York, Surrogate Court’s filing fees differ based on size of estate as well. For the medium estates worth between $250,000 and $500,000, the filing fee comes out to be $625. On the less modest end of the spectrum, for estates worth more than $500,000, the filing fee tips the scale drastically at $1,250.00.
When considering the costs of probate, one should evaluate how much their estate is worth as this amount plays a huge factor in determining the brokerage firm fees, the executor fees, and the probate attorney fees. Although some states don’t allow an estate to be comprised of property outside the United States – or even outside of the residing state in rare instances – New York allows individuals to incorporate real estate and property outside the country, but this can drastically change how much an estate is worth. In these instances, estate taxes could pose an issue as the total value of the estate may exceed the Federal and/or New York’s estate tax exemption quantities.
Where Do You Go From Here?
The estate planning process can be a daunting task and the probate process doesn’t make it any easier. Hiring a qualified estate lawyer within your state is always the best step to take when first starting the process. Please reach out using our contact form. Our attorneys proudly service the Manhattan area and surrounding boroughs.
