What is Probate?

Long Island Elder Law and Estate Planning Lawyers

Probate is often misunderstood. Read on to find out the answer to the question “What is probate?” and learn how to avoid it.
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An estate planning attorney can help you craft an estate plan that minimizes or avoids probate altogether. But why is that so important? Answering that question requires understanding what probate is.

Probate is the legal process of “proving”, or validating, the deceased’s last will and testament through the court system. In New York, the court that handles this is called the Surrogate’s Court. These proceedings are part of the public record and can be very time-consuming and expensive.

The petitioner, usually the executor named in the will, begins the process. The original will and an original or certified death certificate are filed with the court, along with a number of (often many) court documents typically prepared by an attorney. After a thorough review by the court, and the submission of additional documents as required, the court then may issue a notice (called a citation) to the deceased’s closing living relatives, and give them an opportunity to object to the will. If there are no objections, then the court will grant probate of the will and appoint the executor by issuing letters testamentary.

The probate process can be delayed for many reasons, such as difficult to locate relatives, or, even worse, those that object to the will. If there are minors or disabled individuals involved, the court may appoint a guardian ad litem to represent their interests. All of this can add up in delays. Even uncontested probate proceedings can sometimes take a year or more, depending on the court and specific circumstances.

So how do you avoid probate? By having a comprehensive estate plan in place. Assets will avoid the probate process if setup properly.

Having a trust in place is often key to avoiding probate on assets that cannot easily have a beneficiary, such as individually owned real estate. But not every asset can go into a trust.

Complex probate processes can be costly and take years to finalize. This is why many individuals retain an estate planning attorney to avoid them. Lengthy proceedings can be frustrating for heirs who are rightful beneficiaries but must comply with this sometimes lengthy and expensive process. The most common reason for high probate costs occurs when someone contests the will, as ongoing litigation can be expensive.

The best solution is to create an estate plan with an experienced estate planning attorney that allows your assets to pass outside the probate process. Work with them to update the names of beneficiaries on accounts, possibly create a trust, and take other actions to help minimize probate court interactions and streamline your heir’s inheritance process. The experienced estate planning attorneys at Kurre Schneps are ready to assist you.

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