Kurre Schneps LLP

A Premier Elder Law and Trusts & Estates Law Firm

New York Probate, Estate and Trust Administration

How does probate work?

There is often tremendous grief and pain at the loss of a loved one. When you add external stresses to the equation, disaster can result in very short order. An executor or administrator who is well-advised by a seasoned estate attorney can reduce the level of stress during the New York probate process.

The fundamental duties of a personal representative (also known as an “executor,” if male, or an “executrix,” if female) of an estate are the same as those of a trustee –safeguarding and collecting assets, paying valid debts, accounting to the beneficiaries, and distributing assets to the beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to have all of your affairs in a row and prepare as best you can.

Read on for some essential reminders about the New York probate process and how we can assist with the process.

What should I know about the New York estate process?

A personal representative is required to prepare and file an inventory and settle valid claims after the representative is approved by the court. The time frame for these important chores are set by law. This inventory should list all of the assets subject to probate as well as any assets that pass outside of probate by operation of law. The property must be valued and even appraised as necessary. The claims include debts due and owing to the estate (not debts the estate owes to another party). Beneficiaries want to know what they will receive and creditors want to know if there is enough money to get paid. The representative is also expected to account to the beneficiaries prior to distributing the assets to the beneficiaries.  If any of these actions are not properly or timely completed, the representative could be surcharged and removed, which would slow down the process (and raise tempers).

One thing to realize if you are a beneficiary is that the will may be “read” a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the estate’s administration. The representative must settle the decedent’s debts and claims before he or she can make any distribution of the assets. Therefore, as a beneficiary, you cannot start taking whatever you want. Most likely, the representative is doing his or her job and making sure everything is safeguarded until the appropriate time for distribution to the beneficiaries.

As noted above, the representative must also keep the administration process moving along by settling all of the decedent’s debts. Also, some representatives are under the mistaken impression that all debts must be paid. He or she begins paying the decedent’s bills immediately, which is not necessarily good as there are specific laws regarding the viability and priority of bills.

The representative must keep the beneficiaries informed by providing them with notice that the will is being submitted for probate along with a copy of the will. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights.

The representative is responsible for the care and maintenance of estate property, treating it with great care. The representative is generally permitted to sell property that is perishable or would deteriorate in value during the estate settlement process.

As you can see, being a representative is an enormous undertaking. Consequently, the representative can be removed if proven to have committed gross misconduct or mismanagement in the role of representative. The representative may be subject to a suit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with many other details.

It’s okay to ask for help. In fact, it is customary and expected that personal representatives of an estate will hire a seasoned estate attorney to guide them on the fulfillment of their role and to prepare the necessary court papers and other documents.  The legal fees and court costs incurred by the personal representative to carry out his or her duties are customarily paid out of the estate assets.

As you can see, there is more than a little pressure on the personal representative and a representative that does not act properly can be sued. As a result, it is essential that the representative work in concert with an experienced estate attorney to guide the representative or beneficiaries during this process … and avoid all of the hidden landmines. As experienced estate attorneys, we can help make the process as smooth as possible.