The Process of Probate
Understanding the Process of Probate in Buffalo
The process of probate is the involves proving that the will of a deceased person (testator) is in fact his or her will and reflects his or her wishes. The purpose of probate is to prove the validity of the will, have the executor appointed and administer the estate.
A will may not be probated unless the Surrogate’s Court is satisfied as to the genuineness of the will and the validity of the execution (signing) of the will. A will must be probated to be valid.
A will is not operative until it is admitted to probate by the Surrogate’s Court. Admission to probate requires establishing, upon due notice to all required persons, that: (1) the will is the will of the decedent; (2) that it has been signed and witnessed and otherwise executed as required by law; (3) that at the time of its execution the decedent was of sound mind; and (4) that it, indeed, was the last will and testament of the decedent.
The execution of a subsequent will revokes an earlier will. When the court is satisfied that the above conditions have been established, the will is admitted to probate and is effective for all purposes, including the transfer of the title to real property. Until such admission to probate, the will has no force and effect and the named executor has not authority. Let our experienced Estate Planning Attorney near Buffalo review your case.
Probate assets are any assets that are owned solely by the decedent, including the following:
- Real property that is titled solely in your name or held as a tenant in common (not joint tenants with rights of survivorship).
- Personal property, such as jewelry and furniture.
- Bank accounts, boats and automobiles that are solely in your name.
- An interest in a partnership, corporation, or limited liability company held in your name.
- Any life insurance policy or brokerage account that lists either you or your estate as the beneficiary.
- Those assets that are in sole ownership of the decedent are referred to as probate assets.
Filing a Request for Probate
A will is probated in the Surrogate’s Court of the county where the deceased lived at the time of death. The Surrogate’s Court charges fees for probating a will according to the following statutory fee schedule which is based on the value of the probate estate:
- Less than $10,000 $ 45.00
- $10,000 but under $20,000 $ 75.00
- $20,000 but under $50,000 $ 215.00
- $50,000 but under $100,000 $ 280.00
- $100,000 but under $250,000 $ 420.00
- $250,000 but under $500,000 $ 625.00
- $500,000 and over $1,250.00.
- The county in which the decedent resided at the time of his/her death is where a will is typically probated.
Steps in Probating a Will
- The executor must notify all individuals and guardians of children or incompetent persons who may benefit for the estate, and other parties.
- The court reviews the following documents: (a) Original will; (b) Petition for a decree of probate and appointment of an executor; (c) Death certificate; (d.) Affidavits of attesting witnesses to the will signing, and (e) Waivers from heirs.
- The Court issues a decree for probate and letters testamentary which is the official decree of the Surrogate’s Court giving authority and appointment to the executor to carry out his/her duties. Local court rules may require additional documents.
- The process of probating a will follows three steps: the executor notifies beneficiaries, the court reviews legal documents, and finally the court issues a decree for probate.
When Probate is Not Necessary
The process of probate is not required for all estates, such as in these situations:
- Family Exemption: Under New York Law, the surviving spouse and dependent children are entitled to receive certain assets and funds before any estate proceeding is required (“family exemption”). For example, a spouse is entitled to receive cash of $25,000 before any estate proceeding is required. Under New York law, a spouse is entitled to transfer one motor vehicle with a value of $25,000 or less without resort to probate. The death certificate and title documents will be required by the Department of Motor Vehicles in order to complete the transfer.
- Voluntary Administration/Small Estate Proceeding: If the assets of the estate below $30,000 (after the Family Exemption amounts) and if the decedent owns no real estate, the estate may be administered using a small estate proceeding. The small estate proceeding is a simplified process and less expensive process which does not require the filing of a petition for probate.
- All other assets are non probate assets.
- Insufficient Assets to Pay Debts: If estate debts and administration costs exceed the value of the estate assets, it may not be advisable to proceed with probate. The filing of the petition for probate will require the Executor to pay all creditors and do a judicial settlement of the estate.
- Probate is not necessary in certain situations like family exemption, voluntary administration, small estate proceeding, insufficient assets to pay debts or when all other assets are non probate assets.
If you or a loved one are in the process of probate, or require the services of an experienced estate planning attorney near Buffalo, please call the law office of Friedman & Ranzenhofer to help you make the right choices for yourself and your loved ones.
Robert Friedman is an experienced estate planning attorney near Buffalo NY. For further guidance, watch the educational seminar, 15 Ways to Avoid New York Probate.