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Estate and Business Planning Legal Blog

Saturday, December 8, 2018

The Truth About Probate

The mere mention of the word “probate” usually conjures up visions of extensive delays and enormous expense in settling the estate of a deceased person.  Seminars promoting living trusts and articles and books written about them are persuasive, and they promote the misconception that probate is an evil to be avoided.  

The truth is that the process of probating a will is quite simple, at least if the decedent is a resident of New York and his or her next of kin are closer than cousins.  It involves the preparation and filing with the Surrogates Court of a probate petition and other documents which are typically prepared by an attorney. While in the past attorneys would charge fees for their services based on a percentage of the value of the estate, most attorneys today properly charge by the hour, based on the amount of work involved.  If the will was properly prepared and it was signed by a competent decedent in the presence of two witnesses and is accompanied by a notarized affidavit of the witnesses, the probate process should be easy and not costly. 

An important factor in determining the time frame in which a will can be probated is the speed at which the Executor begins the process and the time taken by the attorney who is hired to handle the estate.  If they work in a timely and efficient manner, then it should take no more than a few weeks to complete the probate.  Having an attorney thoroughly familiar with and experienced in this area of law is extremely important. 

It is important to note that even if the decedent had a revocable living trust, avoiding the need to probate a will, the assets must still be collected, expenses must be paid, and it also may be necessary for an estate tax return to be prepared and filed. Where the revocable living trust becomes an important part of one’s estate plan is when one resides in the State of Florida or some other state where probate is difficult.  Additionally, if one owns real property in another state, having that property transferred into a revocable trust will avoid the need for a second probate.  Lastly, if one’s next of kin consists solely of cousins or cousins once or twice removed, probate becomes more difficult, and so the revocable living trust may in fact be a better option.

In short, if one is interested in settling an estate quickly, care must be taken in selecting a responsible Executor and experienced attorney who will work efficiently. Of course, proper estate planning conducted prior to death is also essential. 

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