You were warned. Lawyers, accountants, bankers, financial advisors, neighbors and Cousin Bernie all warned you. It has to be avoided. Not avoiding it, well… it’s just better if you avoid it.
We are talking about Probate. When someone who has a Will dies and an asset belonging to them does not have a beneficiary or surviving co-owner, then the only way that asset can be administered is through Probate.
Probate is the process by which a Last Will and Testament is submitted to a Surrogate’s Court for review and an executor is appointed to gather estate assets and distribute them. In addition to the original Will, Probate requires a petition, death certificate, and waivers and consents to be filed with Surrogate’s Court.
Understanding the mechanics of Probate proceedings will help contextualize the general anxiety that professionals and non-professionals feel when proper estate planning is not in place.
Within days of a loved one’s passing, a surviving spouse or adult child will invariably try to locate the original Will. Hopefully, the Will is situated in a fireproof box in their loved one’s home. Sometimes, the original Will sits in a safe deposit box or the drafting attorney’s safe.
Neither of these options are preferable.
The lifespan of a Will can easily reach 15, 20 or 30 years. The safe deposit box’s other co-owner may have died years ago and now the box is frozen, requiring a court order to open it. The drafting attorney may no longer be in practice or the law firm may have dissolved, requiring family members to undertake more intensive legwork to locate the original Will.
Upon locating the original Will, it should be given to the estate attorney working on the case, along with an original death certificate. A Probate petition will be completed, which lists the decedent’s name, residence, date and place of death. The named executor who wishes to be the petitioner will be listed, as well.
The petition will also specify the members of the decedent’s family, including names, addresses, relationship, legacy and fiduciary status. These necessary family members are called distrubutees.
Distributees are required to execute waivers and consents, which establishes jurisdiction over that individual, eliminates any objection to Probate and the choice of an executor. If a distributee does not return the waiver, then a hearing would be required for that distributee to make an appearance to satisfy jurisdiction.
Other parties who will receive estate assets under the will are mentioned in the petition. These parties would receive a notice of probate. The value of the estate and real property interests held by the decedent are entered in the petition. Increasing dollar amounts correspond to ascending court filing fees.
With the adoption of e-filing, New York estate attorneys can scan and upload documents directly to Surrogate’s Court, pay the filing fees and overnight the original Will and death certificate. Additional affidavits may also be e-filed. A staple affidavit for a Will missing a staple, an affidavit of comparison that links a Will copy to the original Will, and an affidavit of heirship plus a family tree are among the documents an estate attorney would file.
Once the court reviews the full case file and every requirement has been satisfied, letters testamentary are issued and the executor is appointed. From the date letters are issued, creditors have seven months to file claims against the estate, which will be honored by the executor.
Executors distributing estate funds to beneficiaries after the seven-month period has elapsed will not be held responsible should a late creditor appear. It is encouraged that executors prepare receipt and releases for estate distributions to protect themselves.
Probate is designed to protect the estate wishes of a decedent that the court does not know. The court only knows what the Will states, how the Will was prepared and the names of the intended heirs and necessary parties. A single glitch, stray error, or one difficult relative can gum up the works of the Probate process. Avoiding Probate removes forms, fees and potential interpersonal conflict from an estate resolution.
Alan D. Feller, Esq., is managing partner of The Feller Group, located at 625 Route 6, Mahopac. He can be reached at alandfeller@thefellergroup.com.