The process known as probate entails the selection of an estate representative, such as an executor, collecting the decedent’s estate and assets, paying taxes and debts owed, and then distributing the estate to the appropriate parties, the named heirs of the decedent.
The person designated as the executor in a will should be the one to start the probate process and manage the overall process. They might be in charge of steps such as identifying and locating assets, managing the property in the estate, paying taxes and the legitimate unpaid debts of the decedent, and then identifying the beneficiaries of the will.
What Are the Requirements for a Will to Be Admitted to Probate?
One of the main goals of probate is to establish the existence of a valid will of the decedent if they had one. The will must have been drafted, signed, and witnessed, and the decedent must have had the mental ability to make a will. The petitioner, the party submitting the will for probate, must establish these conditions.
How Much Does It Cost to File Probate?
Probate fees in New York are the fees charged by the court to supervise the probate process, which is the legal process of administering a deceased person’s estate. Typically, these fees are paid by the executor of the estate from the assets of the estate. The amount of probate fees varies depending on the value of the estate and the complexity of the probate process.
In New York, probate fees range from 0.5% to 4% of the total value of the assets of the estate. The value of the estate determines the percentage fee that is charged. Generally speaking, smaller estates pay a lower percentage than larger ones.
- There is no probate fee for estates with a value of $10,000 or less;
- The probate fee is 0.5% of the estates with a value of between $10,000 and $20,000;
- The probate fee is $100 plus 1% of the estate’s value over $20,000 for estates valued between $20,00 and $100,00;
- The probate fee is $1,100 plus 0.5% of the estate’s value over $100,000 for estates valued between $100,000 and $2,000,000;
- The probate fee is $11,000 plus 0.75% of the estate’s value over $2,000,000 for estates valued between $2,000,000 and $3,000,000;
- The probate fee is $18,000 plus 1% of the estate’s value over $3,000,000 for estates valued between $3,000,000 and $5,000,000;
- The probate fee is $33,000 plus 1.25% of the estate’s value over $5,000,000 for estates valued between $5,000,000 and $10,000,000;
- The probate fee is $83,000 plus 1.5% of the estate’s value over $10,000,000 for estates valued over $10,000,000
These fees are separate from the other costs that arise in connection with the probate process. These would include such costs as attorney’s fees, appraisal fees, and accounting fees. These other costs can mount up, and a person wants to consider them when they plan their estate.
Which Assets Can Be Exempt From Probate in New York?
While the probate process must be followed for most of a person’s assets, there are certain ways to bypass probate. The following assets are exempt from the New York probate process:
- Accounts Payable on Death: Funds in these accounts may go directly to beneficiaries without going through the probate court.
- Property that Transfers upon Death: This category includes a wide range of assets, including securities and automobiles. Title to real property might be held in joint tenancy or other forms of joint or common ownership. If this is the case, the decedent’s interest in the property passes outside of probate.
How Is the Probate Process Initiated?
The executor of a will is responsible for filing the original will in the Surrogate’s Court of the county in New York where the person who passed away lived and had their primary residence. A certified death certificate, which is a document that has the date and location of the decedent’s death, along with a form called a “probate petition” and other supporting documents, must be filed with the will and petition.
It may be possible to file these papers electronically using the New York State Courts Electronic Filing system (NYSCEF). A person can check to see if this is possible by consulting the e-filing county list for the Surrogate’s Court, which a person needs to file the papers.
The names of the heirs in the will must be listed in the probate petition. These heirs must be served a notice of the probate action, called a “citation.” The citation tells the heirs that the executor has the legal right to manage the estate of the decedent.
Who Has to Get Notice of a Probate Proceeding?
All essential parties must receive notice of the probate action. Who the essential parties are depends on the situation. However, as noted above, they include the heirs, including those who may be entitled to inherit through intestate succession if there is no valid will.
What Evidence Substantiates the Validity of a Last Will and Testament?
In order to be valid, the following conditions apply:
- A will must be in writing;
- The will must be signed at the end by the testator, the person who makes the will. Or a will may be signed in the name of the testator by another person in the presence of the testator and at the direction of the testator. A person who signs for a testator should also provide their address, but if they do not, it does not affect the validity of the will;
- The testator must be 18 or older and of sound mind and memory;
- No effect is given to any part of a will that follows the signature of the testator;
- No effect is given to the part of the will that comes before the signature of the testator if it was added after the execution of the will;
- A person who signs the testator’s name may not count as one of the required witnesses to the will; and
- There must be 2 witnesses to a New York will if it is to be valid. The witnesses must sign their names and provide their addresses at the end of the will.
Finally, the testator must, at some time during the execution and attestation, state to each of the witnesses that the document that the testator has signed is the testator’s will.
Does an Executor Have to Post Bond?
In order to guarantee that the probate is done correctly, the court may ask the executor to post a bond. Most wills have a provision that allows the executor to act without posting bond, but it may be necessary for some probates. The bond is basically insurance that covers any damages the executor may incur.
What Are Testamentary Letters?
The Surrogate Court issues a decree granting probate and allowing the issuance of Letters Testamentary to the executor. The Surrogate Court does this when it is satisfied that the will is valid, that the parties who should receive notice have received notice, and that the nominated executor is qualified to serve as the executor. The probate may then proceed to its conclusion.
What Does the Executor Do to Manage the Estate?
The executor must start handling the estate’s administration as soon as the will is granted probate. In essence, this entails assessing debts and gathering assets.
Basically, the executor must ensure that assets are safeguarded, creditors are compensated, and the net estate is distributed to the beneficiaries according to the decedent’s will. They may find this task to be the most difficult of all. The executor’s duties include the following.
- Identifying Assets: In some cases, the executor is quite familiar with the deceased’s assets. In any case, the executor must locate and identify the assets of the estate. There are a variety of ways to do this;
- Stock of Assets: The executors must list the assets of the deceased. The court must receive an asset list no later than six months from the appointment date or the deadline for filing an estate tax return, whichever comes first;
- Appraisal: An appraisal should be performed on real estate and occasionally other valuable goods;
- Account for the Estate: In order to keep estate monies separate from the executor’s personal funds, the executor needs to open an estate account;
- Estate-Specific Taxes: The decedent’s final income tax return, estate tax return, and fiduciary income tax return are some of the federal and state tax returns that the executor is in charge of filing. The executor must complete all tax returns and pay all taxes owed by the decedent and the estate; and
- Keeping of Records: It is best if an executor meticulously documents every activity taken on the estate’s behalf, including every expense. In addition to the fact that a person should do this, heirs, creditors, or the court may occasionally raise questions or complaints. An executor’s ability to answer for their activities is guaranteed if they keep accurate records.
These are only some of the many duties for which an executor is responsible. The executor may also be responsible for a variety of other tasks, depending on the specifics of each estate.
Therefore, it is critical to identify the precise tasks that must be completed and the most effective means of doing so.
What Are the Last Steps in the Probate Process?
The executor must complete an accounting as the last step in the probate process. The executor is ready to complete the accounting when all assets have been identified and located, all debts have been paid, and all issues have been resolved.
The executor must produce documentation of their accounting. The executor must obtain the beneficiaries’ approval of the accounting and confirmation from the beneficiaries and creditors that they have received whatever they are owed.
Often, estate settlements take place informally outside of court. The executor’s attorney drafts the accounting and has it approved by each beneficiary. The beneficiaries are requested to sign a receipt and release that approves of the accounting and acknowledges that they have received what they are entitled to receive and relieve the executor of responsibility.
The Surrogate Court may hold a hearing to settle a dispute if one arises.
What Types of Will Conflicts Are Most Common in New York?
Wills that have not been clearly written may lead to legal challenges. Common will disagreements include the following:
- Instances in which the wrong person receives property;
- Situations in which a beneficiary receives the wrong item or quantity;
- Disagreements over titles and deeds (i.e., partial property interests);
- Disputes about the estimated value of an asset.
More investigation and analysis may be necessary to settle these kinds of issues.
A person should update their will regularly, especially if their life changes significantly, e.g., a spouse passes away, or they make a major acquisition of property. This can help avoid confusion and disputes.
Do I Need a Lawyer for Probate in New York?
The probate laws in New York can be complicated. Of course, much depends on the size of the estate. If your loved one has passed away and left a will, you want to consult an experienced New York probate lawyer. LegalMatch.com can connect you to an attorney who can assist in probate of a will and offer guidance on any problems.
