What is the Probate and How Can It Be Avoided Amidst the COVID-19 Pandemic?

What is Probate?

Probate is the process of proving the validity of a decedent's Last Will and Testament in the Surrogate Court. The probate process only takes place after the decedent passes away, and can be a very complex legal proceeding that may take up to a year and a half in New York State. Getting through this process is extremely challenging, and retaining an experienced New York Probate Attorney can help make sure that the entire legal process goes smoothly.

What is probate and estate administration?

How Does The Probate Process Begin?

The NY Probate Process begins by filing the original Will and a probate petition with the court. Once jurisdiction is complete and all issues are resolved the court issues a decree granting probate and issues Letters Testamentary to the Executor or Executors named in the Will. The Letters Testamentary gives the Executor the authority to administer the estate. Afterwards, the Executor will be responsible for identifying the decedent’s property, having the property appraised, paying debts and taxes, and distributing the property as the Will directs, as part of the NY Probate Process. In a NY Probate Proceeding, the executor named in the will files a petition in Surrogate’s Court along with the original will. The petition includes the date of death, beneficiaries named in the will, heirs-at-law in case the will is invalid, and an estimate of the value of the estate. All beneficiaries and heirs-at-law will be notified of the probate proceeding. The executor is responsible for locating and making an inventory of all your property and transferring it to the estate; Paying your bills and taxes; Collecting debts owed to the estate; Investing and managing your assets during the probate proceeding; and distributing your property to those who you chose to receive it at the end of the NY Probate Process.

What Happens If There is No Will?

An individual who has passed away in New York State is said to have died intestate. If a person owned assets such as joint bank accounts or accounts with beneficiary designations, these assets are usually passed down automatically or through a court process known as estate administration, which is governed by the NewYork State laws of intestacy, which are codified in EPTL 4-1.1. If a court proceeding is conducted, The Surrogate’s Court in the county, in which the decedent was domiciled has jurisdiction over the estate. Based on the strict rules of estate administration and the uncertainties of who will be appointed to administer your estate, it is highly recommended by many estate planning attorneys that a Last Will and Testament or other estate planning instruments be drafted in order to lay out your wishes prior to your passing.

Can You Avoid Probate, Especially During COVID-19?

Living Will: An effective way to avoid probate is to draft a living trust, which is an alternative to a last will. A living trust positions your assets and property "in trust" which are managed by a trustee for the benefit of your beneficiaries. This allows you to avoid probate because the property and assets are already distributed to the trust. 

Add A Payable-On-Death Beneficiary: Naming beneficiaries on your retirement and bank accounts makes you eligible to avoid probate as well. To do this you have to request and fill out the payable on death forms provided by your brokerage company or bank. These forms ensure that proceeds are immediately dispersed at death without having to pass through probate. 

Hold Any Property You Own Jointly With A Spouse or Significant Other: Additionally, joint tenancy with a right of survivorship by owning a property jointly allows the property to pass automatically to your significant other without going through probate. Participating in these actions during the Covid-19 pandemic gives you and your loved ones an additional sense of security and comfort in not having to embark on the strenuous probate journey.

For further Estate Planning inquiries please contact the Law Office of Inna Fershteyn at 718-333-2394 to best prepare for your future through will drafting, power of attorney, health care proxy, and living will documentation.