Answering Your Probate And Estate Administration Questions
What Is Probate?
Since most of us have a certain amount of assets and debts at the time that we die, a legal process is in place to handle these assets and debts. Probate is the legal process for validating the will you prepare to make certain distribution of your estate occurs in the manner you wish. In the event your estate goes through the probate process, the court will resolve all disputes and claims that may arise prior to distribution of your estate.
New York law has a number of rules and procedures regarding the probating of the estate. The purpose of these rules is to make certain no issues remain concerning distribution of assets and finances within the estate. It is important in the probate process for all of the assets to be assembled, debts of the estate be paid and distribution of the estate’s assets to take place in the correct manner.
How Does The Probate Process Operate?
There are contested and uncontested probate matters. Contested matters often arise due to will contests where a potential heir objects to particular language in the will. This can involve allegations of undue influence or claims that the deceased did not have sufficient mental capacity to understand the will’s provisions. Courts will decide upon such issues to determine whether allegations made by those contesting the will have merit.
Most probated estates remain uncontested, however. Nevertheless, in all probate matters, a process is in place. During the probate process, there is generally an executor either named by the decedent or appointed by the court. The duties of an executor include:
- Gathering all of the property owned by the testator
- Paying all debts and taxes pertaining to the estate
- Collecting all income generated by the estate
- Resolving any disputes
- Distributing estate property to the appropriate heirs
- Paying of attorney’s fees, fees to the personal representative and court costs
Ideally, court involvement in the probate process will be minimal, as courts do not wish to disturb the intentions of the decedent. However, there are certain circumstances where the court will rule against the decedent’s wishes when provisions of the will violate the law or public policy. Spouses are generally entitled to a minimum amount of the estate. Also, the court may intervene if innocent after born parties such as minor children are inadvertently left out of the will. In certain instances, creditors may also have claims upon the estate or on certain assets.
What Is Estate Administration?
Estate administration concerns gathering the assets of the estate, paying the debts, distributing the assets and filing any estate tax returns. Specifically, this process can include the gathering of all assets, assessing the value of assets (including any business or business assets), distribution of the assets in accordance with the will, selling any remaining property, filing of taxes, paying all estate bills and closing of the estate.
Sometimes estate administration can be a relatively simple task. In other instances, the estate is burdened with debt and owes extensive amounts of money for taxes. The individual in charge of administering the estate will be responsible for filing any necessary tax returns.
Since there are so many responsibilities for the administrator of the estate, the advice of an experienced probate and estate administration attorney can prove invaluable.
Why Do I Need An Experienced Probate And Estate Administration Lawyer?
We want the probate and estate administration process to go smoothly for a large number of reasons. As these processes can be potentially lengthy, there is also the possibility of significant loss of time and expenses.
It is necessary to remember that probate and estate administration are heavily regulated areas of law. This is particularly true in New York. Generally, only attorneys with extensive experience in these areas of law understand all of its requirements. There are also a number of deadlines in place when it comes to these areas of law. Missing a deadline can result in the probate and estate processes not going as expected and/or result in penalties or surcharges against the executor or administrator.
Most importantly, the failure to comply with the laws or mistakes made during the probate and estate administration process can mean assets from the estate will not go to the intended beneficiaries. The very people you most want to assist may not benefit from these processes.