…and How to Avoid Probate in the First Place

Avoiding probate has become common advice to individuals from many trust and estate lawyers – and the media.  With good reason.  It is a costly process that can take months, even years, to complete following the death of someone who had, or did not have, a Will.

A will is only a statement of a person’s wishes to transfer holding in an estate until a probate court declares it is valid – meaning that the document was properly prepared, signed and witnessed in accordance with the law of the state of residence at the time it was signed.   “Probate” is the term that refers to that court process.

A will is not a will until the court – the Surrogate’s Court in New York – has blessed it.  At that point the executor named in the will is “appointed” and administers the estate of the person who died (aka “decedent”) in accordance with the terms of the will.  If there is no will, the decedent is said to have died “intestate” (no will.) His or her estate is then managed by an “administrator” appointed by the court; the administrator being the person at the top of those persons appointed to have priority to act.

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An Overview of the Probate Process

In New York, a decedent’s assets that are in her or his individual name will be subject to probate or be designated non-probate. Non-probate assets are held in ways that automatically pass by operation of law, such as jointly owned real estate, investment accounts that are jointly titled or have a “Transfer on Death” designated in joint bank accounts, life insurance policies that name individual beneficiaries or retirement funds. They pass to the “heirs” separate and apart from a will regardless of the terms of the will.

For assets in the sole name of a decedent, the court appoints an administrator to distribute those assets under the ”laws of intestacy” under Probate.

How probate litigation arises

A family member’s death can bring out the best of people, and the worst. Emotions can run high. The provisions of a will can reveal complicated family relationships, including long-rooted grievances, strong feelings of inclusion, and others of exclusion. These human factors have the potential to make what should be a straightforward process quite unpredictable.

Probate litigation and other estate related litigation is a specialized area that marries estate planning knowledge with civil litigation experience. Probate lawyers must not only prove the substantive matters of the dispute in court, but they must do so while remaining sensitive to the emotional needs of clients during a trying time.

In New York, every person who is a “distributee” (statutory heir if there is no will) – both those who inherit under a will and those who do not – have a right to object to the probate of the will, and often do. The filing of objections can cause significant delays and legal fees. Challenges may be regarding whether the “testator” (person who has made a will or given a legacy) had the mental capacity to make a will. Questions can arise if there was undue influence, or whether the formalities of execution were not followed in accordance with the law.  Sometimes disgruntled family members can file “objections” just to get a settlement buy-out.  There may be a jury trial.  It can take many months and sometimes years to resolve probate contests. It’s not fun. While such a battle goes on, the court can appoint a “preliminary executor” who can administer the estate. That preliminary executor cannot make distributions to the will’s stated beneficiaries.  Why? Because it is not yet a valid will!

Further, even after a will is “admitted” to probate, litigation may arise during the estate administration.

An executor has significant responsibilities. She or he must, among other things:

  • Collect the decedent’s assets, including loans due to the estate
  • Manage and assist beneficiaries in collecting non-probate assets
  • Make an inventory of the decedent’s property
  • Pay decedent’s debts and estate-related bills
  • Calculate and pay the decedent’s income and estate taxes
  • Obtain valuations for assets
  • Invest the assets of the estate in a prudent manner
  • Prepare a final accounting of her or his stewardship of the estate assets and seek releases from beneficiaries
  • Make final distribution to the beneficiaries under the will

You can see why the probate process can be lengthy, even when there is no litigation challenging the terms. So, even in the absence of litigation about the probate of the will, there can be disputes how the executor performs her or his duties.

Probate also induces sizable court filing fees. The courts are understaffed and – as evidenced by Covid 19 – can be closed down as happened in New York.  Heirs may be difficult to locate and finding them may cause delays. The post office mail lose mail. So can court clerks.  And an estate file is officially a public record, which means anyone including family members, curious citizens or the news media can see records detailing assets.

Avoiding Probate

Experienced trust and estate planning lawyers will most likely tell you the way to sidestep these troubles is to avoid probate.  That is accomplished by having a trust, most likely a revocable trust. That holds title to your individually-owned assets for your lifetime.  You can also have a revocable trust to hold the assets of you and your spouse. The trust ends when you (or both you and your wife) die and the remaining trust assets are distributed to your chosen beneficiaries. No court interventions; no delays; minimal cost.  And even a disgruntled heir will think twice before making trouble via litigation. You have the power (and the money in the trust to pay for any litigation without having to use personal funds to beat back a probate contest in Surrogate’s Court).

Another important point:  as we say at Pierro, Connor & Strauss, “life happens,” and in many cases there is disability or incapacity.  The trust is the most effective vehicle to manage your finances and care for you in such event. Together with a health care proxy and health care declaration your needs will be met and your personal wishes followed without intervention of courts or strangers.

The attorneys at Pierro, Connor & Strauss, L.L.C. have seen it all and have the experience and skills to advise you on the most appropriate way to distribute your estate to your family members upon your death, but perhaps even more importantly, to assist you to enjoy your independence and quality of life in good times and bad.

Who does Pierro, Conor & Strauss represent in probate matters?

As you can see, even the smoothest uncontested estate administration process can be a time-consuming and a somewhat bumpy legal process. That’s why retaining an experienced trusts and estates/estate planning attorney is so important.

Probate attorneys may represent parties on either side of a will or estate administration. Pierro, Connor & Strauss often represents the beneficiaries or potential heirs with legitimate concerns about how their loved ones’ wills were created or how the executors have handled the administration.  Other times, our probate litigators provide legal guidance and defend against challenges to the executor under New York Law.

Speak with a probate litigation attorney

For those in New York who are facing a difficulty in their Surrogate’s Court matter or dread the prospect of a drawn-out court battle, Pierro, Connor & Strauss is available to help. Our experienced team represents individuals, families, corporations, and others. We take the time to carefully understand our clients’ objectives, craft strategies to avoid litigation, but can handle litigation when needed. If litigation does become necessary, we will honor our promise to maintain consistent and clear communication, help you understand the risks, and work with you to achieve the best possible result. .

Take time to talk to a Pierro, Connor & Strauss lawyer today at either our Albany, New York City, Long Island, Lake Placid, Hudson, New Jersey, Florida locations to schedule a no-obligation, confidential consultation.

Life Happens…..Are You Prepared?

Contact us today for a FREE consultation and we’ll be happy to help take the worry out of tomorrow so you can live today.