What is Probate?

Probate is the court-supervised process of authenticating a “last will and testament”. It includes locating and determining the value of the decedent’s assets, paying the final bills and taxes, and distributing the remainder of the estate to the beneficiaries.


The Probate Process—When Is It Required?

Each state has specific laws which are included in the estate’s “probate codes,” as well as laws for “intestate succession” when a decedent dies without a will. Usually it is required, however certain instances it is not, for example if one is an only child, it may not be necessary.


Authenticating the Last Will and Testament

Most states have laws that require one who is in possession of a deceased’s will must file it with the probate court as soon as reasonably possible. An application or petition to open “probate of the estate” is usually done at the same time.

If the decedent left a will, a judge will confirm that it is valid. This typically involves a court hearing, and notice of the hearing must be given to all the beneficiaries listed in the decedent’s will as well as his heirs—those who would inherit by operation of law if he had not left a will.


Appointing the Executor

The judge will appoint an executor or administrator to oversee the probate process and to settle the estate.

The decedent’s choice for an executor is typically included in the will, but the court will appoint next of kin if there is no will- typically the surviving spouse or an adult child.

The appointed executor will receive “letters of testamentary” from the court.


Locating the Decedent’s Assets

The executor’s first task involves locating and taking possession of all the decedent’s assets and protect them during the probate process

Real Estate: The executor is required to protect it buy paying the taxes, insurance, and mortgage payments if applicable.

Other Assets:
Collectibles, vehicles, stocks and bonds need to be protected as well.

Note: Some people own assets that they have told no one about. If this is the case, the executor may need to do some investigating.


Determining Date of Death Values

Date of death values for the decedent’s assets must be determined and this is generally accomplished through account statements and appraisals. The court or executor can usually choose an appraiser.


Identifying and Notifying Creditors

The decedent’s creditors must be identified and notified of his/her death. Notice of the death in a local newspaper may be required to alert creditors that are not known about.

Creditors typically have a limited period of time after receiving the notice to make claims against the estate for any money they’re owed.


Paying the Decedent’s Debts

The executor will pay all the decedent’s debts, the final bills, including those that might have been incurred by his final illness, and any monies owed to creditors from estate funds.


Filing Tax Returns

Filing Tax Returns
The executor will file the decedent’s final personal income tax returns for the year. If the estate is liable for any estate taxes, they will be paid from the proceeds of the estate.


Distributing the Estate

After the previous steps are completed, the executor could petition the court for permission to distribute the remainder of the estate. This needs to be done with proper guidance especially when there are minors involved. One should be working with an attorney who specializes in this type of law.


“Intestate” Estates

An “intestate estate” is when the decedent did not leave a valid will. Usually the property passes to the closest relative.
In the State of New York, it is advisable to retain an attorney who specializes in wills and estates so that the process goes smoothly and correctly.


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