What does it mean to Probate a Will?

by Diana C. DeSanto, Esq.

For most people, when they name someone as the Executor of their Will they believe that is all their chosen person will need to begin handling your estate when you pass away, however, this is not the case. In fact, there’s an entire process, known as probate, which must take place for you to be named the Executor.

What is Probate?

The probate process, also known as “opening” an estate, is a court-supervised proceeding that authenticates your Will (if you have one) and approves your named Executor so they can distribute your property and belongings. During the probate process, all your assets must be located, taxes and debts are paid and, finally, the remaining value of the estate distributed to your beneficiaries. 

When is Probate Needed?

Whether or not you have a Will, probate is necessary to determine what property you had at the time you passed and who has a legal right to it. If you have a Will in place, then the Court will ensure that everything passes to whomever you chose as your beneficiary(ies). When you don’t have a Will, all of your assets are ultimately allocated to your distributees just like they would be if you did have a Will. The difference is, with a Will you get to determine who your beneficiaries are. Without one, your distributees will be up to New York State’s Estates, Powers, and Trust Laws.  

What Assets Pass Through Probate?

Not everything you have a legal interest will need to pass through probate. Anything with a joint owner or a named beneficiary will pass outside of the probate process. Some of these items include assets placed into a trust, life insurance policies with a living beneficiary, a home jointly owned by another living person, etc. Upon your passing, your surviving beneficiary or joint owner will automatically receive full interest in that asset.

The assets which will pass through probate could include real property or bank accounts that do not have another living owner, personal property, life insurance policies with no beneficiary or a beneficiary who pre-deceased you, and so on. Your estate attorney will be able to assist your Executor in determining what assets pass through probate.

What is the Probate Process?

The first step of the process is determining who will be tasked with the job of handling your estate. This determination all depends on whether or not you had a Will. If you did, then your chosen Executor will need to obtain your original Will to file with the Court to show they are your chosen individual. However, if you did not have a Will, then someone will need to be selected by the Court to become your estate’s Administrator. A family member or someone close to you can choose to petition the Court to be named the Administrator if they would like. Once this first step is determined, the rest of the process is the same.

Your Executor or Administrator will then need to determine who your beneficiaries will be. If there is a Will, it will be those whom you chose to be. If there is no Will, your Administrator will need to determine who is legally entitled to receive your assets under New York State law which provides the order in which your assets are to be distributed and to whom. Once these people are determined, they will need to complete forms consenting to your Executor or Administrator being named as such. These consent forms will need to be filed with the Court and without them, your estate cannot be opened.

Next your Executor or Administrator will need to look through all of your assets and determine which will need to pass through probate. After everything is located, they will need to determine how much each asset is worth. This amount will need to be provided to the Court and will establish the value of your estate itself.

Finally, once all this information and documentation is collected, it will be filed with the Surrogate’s Court in the County where you lived when you passed away. After reviewing everything, the Court will officially appoint your Executor or Administrator as such and grant them a Certificate allowing them to act on behalf of your estate. Once the Certificate is issued, your Executor or Administrator will be able to sell your real property, close your bank accounts and do whatever else may be needed to bring as much money into the estate as possible to distribute to your beneficiaries.

When does the Probate Process end?

Once all your assets have been either sold or closed and all the money is brought into the estate, your Executor/Administrator will pay any debts or taxes you or your estate owes and then distribute the remaining balance to your beneficiaries based on either the language of the will or applicable NYS laws. After the distribution, your Executor or Administrator will provide the Court with a final accounting of the value of your assets and petition the Court to end the probate process or “close” the estate.

The probate process can be an extremely complicated and lengthy one and can be very difficult for someone to navigate on their own.

If you are an Executor or Administrator and need help navigating the probate process, contact our office at (518)-899-9200 or through our website at www.trainor-lawfirm.com to see how we can help you.

Disclaimer: This article is intended to be educational and is not intended to be legal advice, which can only be given after an attorney-client relationship is established.

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