LEGAL GUIDE
The Basics of Probate
Written by: Michael S. Haber
Summary: Here are some quick questions and answers about probate in New York.
1 What is Probate?
The word probate stems from the Latin word meaning "to prove." The probate process is the process of proving the genuineness and validity of a person’s last will and testament.
New York Probate Attorney - Estate Administration
The probate process is a court proceeding. How long it takes and how complicated it is will depend upon a variety of factors. If no complex issues are involved and if nobody challenges the probate, the process
can be very fast – perhaps a month or so. 2 What happens during the probate process? During probate, one submits the will along with a variety of other documents. These documents identify the deceased person’s property and the value of that property. If real estate is involved, or if there is an ongoing business, an appraisal will be necessary. 3 Who starts the probate process?
It is usually commenced by the person (or persons) named as executor of the estate. From a pragmatic point of view, it is usually commenced by the attorney hired by the executor to represent the estate.4. Does the executor pay expenses of the probate process?
The estate will ultimately be responsible for the costs (including attorney fees) of the probate process. Even if the executor pays an attorney to start the process, the executor may ultimately repay himself or herself from the assets of the estate.
5 If there is no will, is there still a probate process?
No. Probate refers to proving the genuineness and validity of the will. If there is no will, then the person is said to have died "intestate." In those instances, the distribution of the person’s assets will be done in accordance with a formula embodied in state law. Where a person dies intestate, the process is not probate, but, rather "Estate administration." That process is usually initiated by a close family member.
6 What if someone challenges probate of the will?
That is known as a contested estate proceeding. In that event, it is the job of the executor (and his or her attorney) to defend the will during court proceedings.
7 What does the executor do after the will is probated?
The executor is responsible for carrying out the wishes of the deceased person. This includes paying those who are named in the will, liquidating property, and paying debts and taxes.
8 What if there is only a small estate?
New York has a simplified process for small estates. It is much less time-intensive and considerably less expensive than probating a will where the assets are significant.
9 Does all property go through probate?
Assets that are held jointly with right of survivorship and those for which there is a named beneficiary are distributed outside of probate.
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