When a person dies leaving a Will behind, the legal process that takes place afterwards is called probate. Probate determines the legitimacy of the will after a person’s death to prevent fraud and ensure that the inheritances are rightfully distributed. Probate law varies from state to state, and the laws within each state are subject to change. The probate process can be a long or a short one depending on complexity and issues arising with the will. Some common issues that may occur include:
- Not Knowing If You Need To Probate Loved One’s Will
In many cases, some families do not know how to proceed with a will. Before a will has any legal effect, it must be admitted to probate. However, a will is only required to be probated when the decedent died possessing assets valuing $30,000 or more. In some cases, when
the decedent only owned real estate, probate might not be necessary. In other cases, if a decedent had transferred their assets into a living trust, then the estate would not have to go through probate, granting that the remaining assets do not exceed the small estate limit.
- Contesting A Will
If probate is necessary, then you may come across issues such as a will being contested. A will contest is a formal objection raised against the validity of a will. A person making a will must be competent to do so (not under any influences or fraud), and must be doing so of his or her own free will. In most cases, will contests are usually focused on the assertion that the will does not reflect the actual intent of the testator. The contester may make the argument that the testator was not healthy or in their best mental state at that time. If a will is being contested, the services of a probate attorney will likely be needed.
- Disagreement Amongst Beneficiaries
During the probate process, there may be disagreements over property distribution amongst beneficiaries, usually family members. With families that own large or undivided properties, it is common to designate joint inheritances to beneficiaries. But issues can arise if the parties disagree on the distribution of the inheritances or what to do with that inheritance, resulting in a longer time for the will to be probated and for the assets to be distributed. In cases such as this, a probate attorney can help you to understand the possibilities and come to a mutually agreeable solution.
- Appointing A Responsible Executor
A will must include the name of the executor who will manage the probate process after the decedent’s death. It is important to name someone who is ready to take on the role of an executor because of the significant responsibilities involved. The designated executor is expected to be responsible for filing the will in a reasonable amount of time, notifying creditors that the will is going through probate so that they can make a claim if necessary, filing the estate tax returns, and receive a closing letter from the IRS before closing the estate. If the designated executor does not want this responsibility, then the court may appoint someone to administer the probate process.
- Taxes Involved with Wills
Any property that the testator owns such as bank accounts, cash, cars, real estate, etc. are taxable. Likewise, when someone inherits property, there are taxes that must be paid in order to transfer ownership of that property to the beneficiary. The ownership title will not be passed until this tax is paid. Depending on the value of the estate, estate tax rates can range from 5.6% to 16% in New York. However, a probate attorney can help minimize the tax that must be paid by evaluating your financial situation and drafting a will that reflects state laws.
- When A Will Has Been Lost
If there comes a scenario where your loved one dies without a known will, his or her assets will go to the state to be determined how it will be divided in accordance to state laws. If you believe your loved one had a will but it cannot be found, a probate attorney can help you explore the legal options available. The attorney can also advise you on the process of probating a lost will.
- Going Through Probate Without Help
Attempting to navigate the complex process of probate alone can result in increased stress and numerous problems including unnecessary fees and taxes and a longer time for probate. An experienced Probate attorney is specially trained to save you from the confusion regarding the process of probate, formulate a will, and help with the paperwork and duties. If you want to ensure a quick and efficient probate process, contact Attorney Inna Fershteyn today at (718) 333-2394.