** This article has been revised from its original version which was published on February…
Losing a loved one is incredibly difficult. Emotions are high and the last thing you want to do is handle your loved one’s estate. Unfortunately, sometimes the probate can’t be avoided. So, what do you need to know about a probate proceeding?
Q: What is a probate proceeding?
A: Probate is the legal process of submitting a person’s Last Will and Testament (after he or she has passed away), to the Surrogate’s Court. The court has to review the Will and authenticate its validity and proper execution. Once the Surrogate’s Court approves the Will, it will appoint the Executor nominated under that Will to be the fiduciary – the person authorized to handle the decedent’s affairs.
Q: When is a probate proceeding required?
A: A probate proceeding is needed when the deceased person had “probate assets”. A person’s gross estate is comprised of two types of assets – probate assets and non-probate assets. Probate assets are assets that were just owned by the person who passed away. Because these assets were solely owned by the decedent, the nominated Executor is required to go to the Surrogate’s Court to have the Will probated and the Executor appointed in order to access the probate assets. The other type of assets is non-probate assets. These are assets that the decedent owned but states in the title of the asset what should happen to the asset upon death. These non-probate assets do not need to go through the probate process because they pass by operation of law upon the person’s passing.
Q: What is the process for an Executor or an Administrator to be appointed?
A: Both an Executor and Administrator are appointed by the Surrogate’s Court. An Executor is someone nominated in the decedent’s Will. An Administrator is appointed when a person dies without a Will. The process begins with a petition to the Surrogate’s Court, obtaining Waivers and Consents from the closest living blood relatives, and preparing other appropriate documents. Upon submission of all required documents, the Surrogate’s Court will appoint the Executor or Administrator. The Surrogate’s Court will issue a legal document to the Executor known as Letters Testamentary or a legal document to the Administrator known as Letters of Administration. This certificate authorizes the Executor or Administrator to deal with all matters, including the finances, of the decedent.
Q: How can you avoid a probate proceeding?
A: There is a common misconception that probate is bad, but there are certain situations where a probate proceeding is of benefit. However, if your goal is to avoid probate, then when you’re planning, you have to make sure that you title all of your assets properly so that each asset will pass by operation of law, as non-probate assets upon your death. You can also establish a living trust funded with your assets in order to avoid probate.
We strongly recommend that you plan ahead and review the titles and beneficiary designations for all of your assets – this is something that needs to happen on an ongoing basis. It’s never too early to be prepared. Now is the time to think about your Last Will and Testament and plan for your future.