What is the Purpose of Probate?
The main purpose of Probate is to transfer assets out of the deceased person’s name into the name of the living. An estate’s assets will be frozen while a judge determines if the Will, providing one was left behind, is valid. All relevant people to the estate must be notified, all the property in the estate must be identified and appraised, and creditors and taxes must be paid. Once all these items are complete the court issues and Order distributing the property and the estate is then closed.
Do All Estates Have to Go Through Probate?
No, there are certain cases where an estate does not have to go through probate.
Do All Assets of the Estate Have to Go Through Probate?
No, the following types of assets transfer automatically after the death of the owner.
- Joint Tenancy assets are assets owned by two or more parties, with the share of each passing to the other or others on death.
- Beneficiary Designations are assets that have named beneficiaries such as life insurance and retirement accounts.
- Payable/Transfer on Death Accounts, which are assets that have a designated recipient after death, such as bank accounts.
What is The State of New York’s Probate Process?
- The Will, in a reasonable amount of time after the death, must be filed in the county Surrogate Court where the deceased lived.
- A Petition for Probate to request the appointment of an executor must be filed.
- “Letters Testamentary” are issued by the Court to give the executor/Personal Representative legal authority to act on behalf of the estate.
- Notice must be given to all potential heirs and beneficiaries.
- Creditors are given 7 months to make a claim against the estate.
- An inventory of the estate’s assets must be conducted and then filed with the court within 6 months of an executor being appointed.
- A Petition to close the probate must be filed with the court after all the creditors and taxes are paid.
- An Order distributing estate assets to the beneficiaries will be issued by the Court.