Many clients are fearful about their loved ones going through probate when they pass away. They may have heard horror stories about how complicated, expensive, or time consuming probate is. Whether your estate has to go through probate depends on which assets you own, how they are titled, and whether you have completed transfer on death forms or beneficiary forms.
Probate is the legal process by which property is taken out of the name of a person who has passed away, and put into the name of the person whom is to inherit the property (a beneficiary). The beneficiary is determined by a person’s will or trust, or if he or she did not do any type of estate planning, by New York law.
Some assets transfer easily upon death without probate becoming necessary. Assets with beneficiary forms or transfer on death (TOD) forms will pass to the named beneficiaries without a probate proceeding. Assets that are held jointly with rights of survivorship, which is how many married people own their homes and their joint bank accounts, will pass without going through probate when the first co-owner dies.
Therefore, some people do not have to go through probate when they pass away. If a person dies owning no more than $30,000 in assets in New York with no real estate, a simplified probate procedure , known as Voluntary Administration, can be utilized. Also, if a person is married, upon the death of the first spouse, the surviving spouse often will not have to go through probate if the spouses owned all of their assets jointly, which is frequently the case. However, when the surviving spouse passes away, his or her estate will have to go through probate at that point.
One way to avoid probate is by using a living trust. A living trust is a trust a person sets up while he or she is living. The individual titles all of his or her assets to the trust during life, and then at death the property does not go through the probate process. Instead, the assets are easily transferred by the trustee the individual selected.
If you’re in New York and you are concerned about the probate process or avoiding probate, call the New York estate, trust and elder law attorneys at Friedman & Ranzenhofer at 716-542-5444. Our skilled attorneys will walk you through the probate process and how to avoid it.
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