Estate and Business Planning Legal Blog

Sunday, November 14, 2021

New York & Florida Probate: A Comparison

Clients often ask why they need to go through a probate process when someone dies leaving a last will and testament.  The simple answer is that there needs to be a legal procedure whereby the ownership of assets is transferred from the deceased to his/her beneficiaries.  Is probate something to be avoided?  The answer depends.

In New York, the probate process is quite streamlined.  The original will and death certificate are filed with the Court, along with a Petition and a few other required documents.  The persons who would have inherited if the person died without a will--that person's heirs- need to consent or at least have an opportunity to be notified and to challenge the will, if appropriate.  In most cases where a person dies and leaves a spouse and children, even brothers and sisters, the process is relatively simple and quick.  Once the Executor is appointed by the Court, the process is over, unless, of course, someone complains that the Executor is not doing his or her job properly.

In Florida, the process is more complicated and lengthy. Part of the reason it has become lengthy, at least in some counties, is that everything is required to be filed electronically, sometimes on two separate databases.  While one would think that electronical filing is quick and easy, it is not uncommon for problems to arise.  More importantly, the probate process is not over when the Executor (referred to in Florida as a Personal Representative) is appointed.  There is an estate closing process, which requires many steps.  For instance, one needs to publish a notice to creditors, so that creditors can file claims, if appropriate.  The Florida Health Agency also needs to be notified, in case the deceased was receiving some form of public assistance.  An inventory must be prepared, filed and sent to everyone.  These are just some of the steps which one must go through, after the Executor is appointed.  The closing of the estate itself can take a year.   Also, if the decedent was not a Florida resident but owned real property in Florida, the Courts will usually require the posting of a bond.  Also important to note is that a non-resident of Florida may not serve as Executor unless that person is a member of the decedent's family.

Is there any reason why someone would want to go through probate?  The one advantage of the probate process is that it tends to keep the Executor honest and accountable to the beneficiaries.  Also, if probate is avoided entirely by naming beneficiaries on all accounts, there will be no funds in the estate to pay expenses, thus leaving it to the individuals to decide to share them.  In that case, a revocable living trust is a better alternative.  A revocable trust is a good alternative but usually entails more work and great expense for the person creating the trust, as all assets must be transferred into it, in order to avoid probate.  

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At the Law Office of Angela Siegel, we are pleased to offer legal assistance to clients located in Nassau, Suffolk, Queens, Kings and New York Counties specifically but not limited to Garden City, Jericho, East Meadow, Mineola, Syosset, Roslyn, Cedarhurst, Woodmere, Hicksville, Plainview, Merrick, Wantagh, Bellmore, Rockville Center, West Hempstead, Little Neck, Douglaston, Bayside, Flushing, Forest Hills, Astoria, etc., as well as clients located within the state of Florida.

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