Which Assets Must Go Through Probate in NY?

The NY Probate Process aims to prove the validity of an individual’s Last Will and Testament. A will is a legal document that serves to outline your wishes in regards to how you would like your children to be cared for and the distribution of your assets upon your death. This document is imperative in guaranteeing that your wishes and best interests are met to the greatest extent possible. Without a will present, the court will be responsible for making the decisions concerning your assets and loved ones. In most cases, the court’s decision does not align with the plans you initially had in mind. If an individual passes away with assets greater than $50,000 and leaves behind a will, then the will would pass through probate. This is done to ensure that the court deems the will as valid in federal court. Once the will is proven valid, then the deceased individual’s wishes and best interests stated within the will can begin to go into effect. Probate is often a lengthy process that many individuals wish to avoid. With the aid and proper guidance from an esteemed Estate Planning Attorney, you too can avoid the tedious private process.

Which Assets Must Go Through Probate in NY?

What is the NY Probate Process?

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. Upon filing the original Will and a probate petition with the court a probate examiner will usually be assigned, as per the NY Probate Process.A probate court hearing will be scheduled within the next 5-6 weeks if there are no major objections. At the Initial Probate Court Hearing a judge will decide on whether to grant an Order for Probate. Upon the case that the judge requests additional information, a continuance will be placed on the hearing to review the case again at another date. Once a judge signs and grants the Order for Probate, the County Clerk will issue the Letters of Administration, which establishes the timeline for the rest of the NY Probate Process.

Why do many seek to avoid the Probate Process?

The NY Probate Process can take anywhere from 7 months to 18 months. However, during the Covid-19 pandemic, the time frame has greatly changed and faced many delays due to the challenges associated with the public health crisis.The minimum time to complete probate is 7 months from the time the will is admitted to probate. On average a probate case in New York takes about 12-18 months to complete the 3 stages of probate prior to the pandemic. Now, a typical probate case in NY takes about 2-3 years because of the lack of in-person court meetings and the difficulties of virtual court proceedings. The first stage takes about 3-6 months to appoint the executor. The second stage takes about 6-12 months to settle the estate. The third stage takes about 3-6 months to close the estate. Many delays that can prolong the time period to probate a will can be avoided with the help of an experienced New York state estate lawyer to assist in the NY Probate Process, especially during the challenging times associated with the Covid-19 pandemic.

Which assets do not need to go through Probate?

An Estate Planning Attorney can work with you to minimize the likelihood that you will have to pass through the probate process. Not every estate must go through the probate process. Probate is only required when there is no other method for transferring the assets to the heirs or devisees of the estate. Only an estate valued over $30,000 will be probated if there is a will, thus if assets of the deceased are of low value probate is not required. Those that wish to avoid probate can establish a trust to hold and distribute the majority of their estate assets. An effective way to avoid probate is to write 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. Naming beneficiaries on your retirement and bank accounts makes you eligible to avoid probate. 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. 

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. Other ways to avoid the probate process pertain to life insurance and annuity contracts that name a non-estate beneficiary, which can be paid directly upon the receipt of a death claim without going through the probate process. Retirement accounts, as well as brokerage accounts such as the IRA or 401K may also avoid the probate process. Real property can be titled in a manner to pass to an heir without passing through the probate process. Lastly, bank accounts with a payable on death or transfer on death provision can pass directly to the beneficiary because they are considered non-probate assets. 

Which assets do need to pass through Probate?

Property or assets in the decendentant’s name on the title at the time of death will have to go through the probate process. The probate court, however, has the ability to change these titles in relation to the specified interests of the decedent stated within the will. A car, home, or bank account solely under the descendants name will be subject to probate based on New York State regulations. Some assets that are co-owned may still be subject to the probate process if the ownership fails to include the rights of survivorship. Conversing with an Estate Planning Attorney can help you identify which documents and assets must pass through the probate process. After meeting with the attorney you may be more inclined to avoid the lengthy probate process once you realize that it is costly and may not be necessary for your specific circumstances. Regardless of whether you decide to participate in the probate process or not, an attorney will support you in your decision and ensure that you are well prepared for any decision you make.

For further Estate Planning information please contact the Law Office of Inna Fershteyn at 718-333-2394 to best understand which assets must go through the NY Probate Process.