The mere mention of the word “probate” usually engenders a rather negative reaction. For many people, the word conjures up visions of extensive delays and enormous expense involved in settling an estate. Seminars promoting living trusts are pervasive 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 the State of New York. It involves the preparation and filing with the Surrogates Court of a probate petition and other documents which are typically prepared by an attorney. If the will was properly prepared, signed by a competent decedent before two witnesses, and accompanied by a notarized affidavit of the witnesses, the will should not be challenged. If the next of kin consent to the probate of the will, Letters Testamentary giving the Executor the power to collect and distribute assets could conceivably be issued within a week.
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 hired to probate the will. If the Executor is prompt, and the attorney does the work in a timely and efficient manner, then it should not take more than a few weeks to complete the probate process. Having an attorney thoroughly familiar with and experienced in this area of law is extremely important. Once Letters Testamentary are issued by the Surrogates Court, the “probate process” is essentially complete. The next step, which generally becomes more time-consuming, is for the Executor to collect the assets, pay expenses and distribute funds. If an estate tax return must be prepared, additional time will be expended. Once again, how quickly the Executor and attorney take action is key in determining how long the process will take.
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 an estate tax return may still need to be prepared and filed. The nature and extent of the assets owned by the decedent is more important in determining the time period involved than whether or not a will must be probated. For example, the process will be more time-consuming if the decedent’s estate consists of various stock certificates not held in brokerage accounts and savings accounts held in different banks. If real property is owned and must be sold, more time will be expended.
In short, if one is interested in settling an estate quickly, care must be taken in selecting a responsible Executor and experienced attorney. One should also consolidate assets while alive, thus resulting in less work and expense for family members.