Probate FAQs

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What is probate?
Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the “decedent”) via a will to his or her beneficiaries in accordance with a will. Usually, you have to fill out court forms and appear in court to:

  • Prove to the Court that the Will is valid (this is usually routine),
  • Appoint a legal representative with authority to act on behalf of the decedent,
  • Identify and inventory the decedent’s property, and have that property appraised,
  • Pay debts and taxes, and
  • Distribute the remaining property according to the terms of the Will or to the decedent’s heirs.

Is probate necessary?
If the person who died did not have any property to transfer, probate is usually not necessary. The deceased person’s survivors may decide to open a probate if there are debts owed or if there is a need to set a deadline for creditors to file claims. When there is property to transfer the probate process also provides for the distribution of the estate’s property to the decedent’s heirs.

Does all property go through probate when a person dies?
No. The term “probate estate” refers to any property subject to the authority of the surrogater court. Assets distributed outside the probate process are part of a person’s non-probate estate. New York has “simplified procedures” for transferring property for estates worth under $20,000 but not real estate. There is also an easy way to transfer property to a surviving spouse, property held in Joint Tenancy and life insurance and retirement benefits.

Should I choose the simplified procedures?
Not necessarily. Talk to a probate lawyer. There may be debts or tax claims that make probate a better option for you. If there are a lot of issues to handle, going through probate allows you to pay the person who deals with the creditors and taxing authorities.

Do life insurance or retirement benefits need to go through probate?
No. The benefits can be paid directly to a named beneficiary. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically to the persons named as beneficiaries. Bank accounts that are set up as pay-on-death accounts (PODs) or “in trust for” accounts (a “Totten Trust”) with a named beneficiary also pass to the beneficiary without probate.

Do living trusts go through probate?
No. When a living trust holds title to some of the decedent’s property, that property also passes to the beneficiaries without probate.

How long does probate take?
New York law says the personal representative must leave an estate open for seven months to allow creditors to file claims from the date of appointment, unless s/he files a federal estate tax. If probate has not been completed by six months, the personal representative must file a status report to the court. If the personal representative does not report to the court, the beneficiaries can ask the court to order him or her to file an accounting or take other actions to close probate. The court can remove the personal representative and appoint someone else. Sometimes there are circumstances that can make probate take longer. If there is a Will contest (a claim filed with the court that all or part of the will is not valid), or the size and complexity of the estate requires extra time, or it is hard to find beneficiaries, the process can drag out. Some probate cases take years to resolve.

Who is in charge of the probate process?
If there is a Will, the person named as executor will usually be appointed as the personal representative. This means s/he is responsible for managing the estate and following probate rules and procedures. The executor has no authority to act as personal representative until s/he is appointed by the court and formal “Letters Testamentary” are issued by the Court. If there is no Will, or if the Will doesn’t name an executor, or the person named as executor in the Will is unable to be executor or does not want to be executor, the surrogates court appoints someone called an administrator to handle the process. The Court usually chooses the closest living relative, or a person who will inherit some portion of the decedent’s assets.