Probate
Probate is the legal process by which a Last Will and Testament is authenticated in order to distribute the decedent’s (i.e., the person who has passed away) assets to the entitled individuals. In short, the probate process carries out the wishes of the decedent, as set forth in their Last Will and Testament. This process involves determining the value of the decedent’s assets and debts, paying their outstanding bills, and distributing the remaining balance among the beneficiaries, the people named in the Will, who are typically the decedent’s family members.
When is Probate Necessary?
Many assets pass outside of the probate process through automatic mechanisms. However, probate is necessary when a deceased individual had a Will that gives assets to friends and family.
In most cases, probate is only necessary for assets that do not have listed beneficiaries. Often, bank accounts, investment and retirement accounts, and life insurance policies automatically transfer to a beneficiary upon death. However, if these assets do not have listed beneficiaries, probate is necessary before the assets can be distributed. Probate assets are owned solely by the decedent, without any beneficiaries listed to transfer the assets. The two most common probate assets are real estate and personal property, i.e., cash in bank accounts, jewelry, antiques, automobiles, and artwork.
Probate may not be required under the following circumstances:
- Property Owned by Joint Tenancy or Tenancy by the Entirety:
Property is owned in “joint tenancy” when it is shared between two or more individuals, regardless of marriage. When one tenant passes, the surviving tenant gains control and ownership over the entire asset. Tenancy by the Entirety is Joint Tenancy when the “joint tenants” are married and the asset is real property (a house, apartment, or other real estate).
- Community Property with Right of Survivorship:
Community Property with Rights of Survivorship occurs when a spouse dies. Upon death, their 1/2 share of the property will transfer to the surviving spouse without the need for probate.
In most cases, this process is easy, seamless, and straightforward. However, sometimes there are disputes between family members, or complicated liabilities, in which case an experienced attorney is required.
The Executor of the Estate:
The estate executor is responsible for managing the estate for its heirs and beneficiaries and completing the administrative tasks. In most cases, they are named in the deceased’s Will; however, courts will appoint someone, usually a relative of the decedent, if no one is named or the person named cannot carry out their duties.
Their main tasks include:
- opening a bank account for the estate
- obtaining an Employee Identification Number (EIN) from the IRS
- collecting and managing assets and investments
- paying debts
- appraising the estate’s assets
- distributing the estate to the heirs/beneficiaries
Executors are required to act in the estate’s best interest and are paid to do so. Failure to distribute the assets appropriately can result in liability for negligence or misconduct. Executors receive the following pay structure upon completion of the probate process.
- 5% of the first $100,000
- 4% of the next $200,000
- 3% of the next $700,000
- 5% of the next $4,000,000
- 2% of the remaining value of the estate
Beneficiaries of a decedent’s estate can often feel powerless during the probate process- especially when the executor fails to communicate updates to members of the estate. Despite this, heirs and beneficiaries do have rights. They can monitor the probate process, exercise their rights to information, and their right to receive the asset(s) to which they are entitled.
How Long Does the Probate Process Take?
In most cases, the Probate process takes about three to six months; however, this process can take several years in some cases. For example, if a Will is contested, the matter may need to be settled through litigation before the decedent’s assets are distributed.
What Should I Do if I Am Named as Executor?
If you have been named the executor of a relative’s estate in their last will and testament, you should contact an estate attorney to determine what needs to be done next. At your initial meeting with your attorney, you should bring original copies of the last will and testament and the death certificate. You should also have a full understanding of the deceased individual’s family tree. Your attorney needs to know whether the deceased individual left behind a wife, children, parents, brothers, sisters, and potentially further extended family members. Also, before your meeting, it is helpful to determine the full extent of the decedent’s assets so your attorney can advise you on which assets pass through probate and which do not.
Administration
The Administration process is required to distribute the assets of an individual who died without a will. Through Administration, the Surrogate’s Court will issue Letters of Administration to a qualified distributee of the decedent. A qualified distributee is an heir at law to the decedent’s estate. An heir at law is effectively an estate beneficiary dictated by the law.
When is Administration Necessary?
When an individual passes away without a Will, a qualified distributee must petition the Surrogate’s Court to obtain Letters of Administration, so that he or she can pay the decedent’s debts and distribute their estate.
Generally, the closest heir to the decedent is in the best position to petition the Court for Letters of Administration. In practice, this is generally a spouse or a child of the decedent. When a petition for Letters of Administration is filed, all of the decedent’s distributees must be put on notice of the petition. This gives them an opportunity to object if they disagree with the Surrogate’s Court issuing Letters of Administration to the proposed individual.
Who is an Heir of the Decedent?
Each decedent’s family must be examined to determine who will inherit when a decedent dies intestate (without a Will). New York’s intestacy law follows a process called by representation which differs from other states such as New Jersey, which follows a process called per stirpes. Pryor Law attorneys are familiar with both processes and can explain how it relates to your situation specifically.
In New York, if an individual dies without a Will, their spouse will receive $50,000 from their estate and half of the remaining assets. Their “issue,” which means descendants (children and grandchildren), will then share equally in the remainder of the estate. However, grandchildren will only receive a share if their parent who was a child of the decedent has predeceased the decedent.
By representation is not typically the process by which an individual would have decided to distribute their estate. This is another reason why it is so important to have a Last Will and Testament.
Similarities to Probate Process
When an individual dies intestate, there are some similarities to when they die with a Will. For example, all of the accounts that transfer upon death to a listed beneficiary will still be effective. Property owned in joint tenancy and tenancy by the entirety will still transfer to the other tenants upon the death of one of the owners.
Further, the Administrator will also have to do the tasks an Executor would in an estate of a decedent who died with a Will and is entitled to the same compensation schedule as an Executor.
What Should I Do if a Family Member Dies Without a Will?
If a family member dies without a Will, you should contact an attorney to determine who would be the best individual to petition the Surrogate’s Court for Letters of Administration. The attorney will ask you for all of the necessary information, such as to describe the decedent’s family tree, and documentation, such as the death certificate. Then, an attorney can file the necessary paperwork with the Court to begin the Administration Process.
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292 City Island Ave., Bronx, NY 10464
Phone: 718-829-0222 | Email: info@pryorlaw.com
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