When someone dies, their property, debts, and final affairs usually must be sorted out through a legal process before anything can be handed to heirs. That process is called probate. Many families choose to hire a probate attorney to guide them through it. Others decide to handle it themselves, often to save money, but end up costing themselves more in the long run.
Understanding the Probate Process
Probate is the court-supervised process of validating a deceased person’s will (if one exists), paying off debts and taxes, and distributing what remains to the rightful heirs or beneficiaries. If there is no will, state law determines who inherits, and the process is often called intestate administration.
A few key terms come up throughout the process:
- Decedent. The person who has died.
- Executor or Administrator. The person appointed to manage the estate. “Executor,” refers to someone named in a will; “Administrator” refers to someone appointed when there is no will.
- Beneficiaries or heirs. The people or organizations entitled to receive property from the estate.
- Letters testamentary or letters of administration. The official document a court issues that gives the personal representative legal authority to act on behalf of the estate.
- Probate court (in New York called the Surrogate’s Court). The court that oversees the process and resolves disputes.
The general steps include filing the will (if any) and a petition with the court, notifying heirs and creditors, inventorying assets, paying valid debts and taxes, and distributing remaining property. Timelines and requirements can vary significantly by state, county, and court.
The Role of the Executor
The Executor is the person legally responsible for winding up the decedent’s affairs. This role carries various duties and some risk. Typical responsibilities include:
- Locating and filing the will with the probate court
- Notifying heirs, beneficiaries, and known creditors
- Identifying, securing, and valuing estate assets
- Opening an estate bank account and managing estate funds
- Paying legitimate debts, final bills, and taxes from estate funds
- Filing the decedent’s final income tax return and any estate tax returns
- Distributing remaining assets to beneficiaries according to the will or state law
- Keeping accurate records and providing an accounting to the court or beneficiaries
An Executor has a fiduciary duty, meaning they must act in the best interests of the estate and its beneficiaries, not their own. If they mismanage funds, favor one heir over another, miss a required tax filing, or distribute assets before debts are paid, they can be held personally liable for the resulting loss. This is one of the most important things to understand before agreeing to take on the role.
When an Estate Is Too Small for Probate
Many states offer a simplified path for smaller estates, often called a small estate affidavit, summary administration, or summary probate. When the total value of the estate falls below a state-specific dollar threshold (in New York, $50,000), an executor or heir may be able to collect and transfer assets, such as bank accounts or vehicles, using a sworn affidavit instead of going through full probate court proceedings.
This process is typically faster, less expensive, and requires less paperwork. Thresholds and procedures differ by state, and some types of property, like real estate, may not qualify, so it’s worth consulting with an experienced probate attorney.
Should You Hire a Probate Attorney?
An experienced probate attorney:
- knows local court procedures, deadlines, and paperwork requirements;
- can help prevent costly mistakes that create personal liability for the executor;
- can mediate disputes among beneficiaries and handle complex tax or creditor issues; and
- take on much of the administrative burden during an already difficult time.
Probate attorneys can guide you through the whole process from start to finish, and alleviate what can be a burdensome set of tasks. A probate attorney is especially important for a number of specific issues, such as tax questions, contested wills, or unusual assets.
Ways to Avoid Probate Altogether
Because probate can be time-consuming and, in some cases, costly, many people plan ahead to keep some or all of their property out of the process entirely. Common strategies include:
- Revocable or irrevocable living trusts. Property placed in a trust during the owner’s lifetime passes directly to named beneficiaries without court involvement.
- Beneficiary designations. Retirement accounts, life insurance policies, and many bank or investment accounts allow the owner to name a beneficiary who receives the funds directly, bypassing probate.
- Transfer-on-death (TOD) and payable-on-death (POD) designations. These designations can be used on some bank accounts, investment accounts, and even vehicles.
- Joint ownership with right of survivorship. Property owned jointly this way typically passes automatically to the surviving owner.
These strategies can significantly simplify things for loved ones, but each has its own rules, tax implications, and potential pitfalls, so discuss your specific situation with an estate planning and probate attorney before relying on them.
Serving as an executor is a serious responsibility with real legal exposure. The probate attorneys at Kurre Schneps can Shepard you through the estate and probate process from start to finish. Contact us to learn how we can help lessen the burdens of being the Executor.
