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Back to the Basics – Demystifying Probate

Are you being told to avoid probate at all costs? The probate process is characterized as a long and tedious process of endless red tape and expense. In many cases avoiding probate can be a worthwhile goal; however, a closer look at the probate process may reduce the angst that is often associated with a sometimes inevitable end to the best laid plans.

Some Basic Vocabulary

If you have been exposed to the probate process in some capacity in the past in connection with a deceased relative or friend you may have had heard some terms not often used in everyday life. Here are a few basic terms you should know:

  • “decedent” means the person who died and whose estate is the now the subject of the probate proceeding;
  • “domicile” means the primary place of residence that establishes the venue for the probate proceeding;
  • “estate” means all the property or interest in property owned by the decedent at the time of death;
  • “personal representative” means the person with authority to administer the decedent’s estate; and
  • “issue” means a descendant from a common ancestor, such as children of the decedent, including adopted children.

What Does Probate Accomplish?

At a most basic level, the probate process in New York, like in other states, is a way for the decedent’s assets and debts to be settled and distributed in an orderly process in accordance with the decedent’s last will and testament, or the laws of descent and distribution if the decedent died without a will, also known as intestate. Probate is a court supervised process administered by a fiduciary of the estate, such as the decedent’s personal representative.

Steps in the Probate Process

Based the decedent’s domicile, a probate case will be opened and, assuming there is a will, the decedent’s personal representative will receive “letters” or authority to administer the probate estate. At this point it is important to understand the scope of the decedent’s estate. The probate proceedings are concerned with the estate of probate assets. This means assets disposed of by a trust or outside of the probate process, e.g. transfer on death accounts and deeds, are not within the jurisdiction of the probate court. Herein lies the widespread motivation to utilize non-probate transfers to reduce or eliminate the probate estate, and with that, the time, expense, and exposure related to probate administration. After an inventory of the probate estate is complete, the personal representative will settle the outstanding debts and claims of the estate. The assets of the estate are used to settle all proper claims submitted by creditors of the decedent. The final stage will be the final accounting and distribution of assets, which will close the estate. The foregoing represents the most basic sequence of a probate proceeding. There are many issues that can occur during the course of a probate case, including disputes brought by beneficiaries or creditors, that can add complexity to the proceedings.

Planning for Probate

There are estate planning steps you can take to avoid probate, including getting help from an estate planning attorney who can explain the nuances of the probate process in New York. If the estate is small enough, there are also summary proceedings available to lessen the burden and expense of the probate process. Having the knowledge of the process and what is included in the probate estate is a first step in dealing with the potential of probate for your or a loved one’s estate.

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