The probate process is something that a lot of people overlook when they are engaged in their estate planning efforts. You may assume that the heirs to your estate will receive their inheritances right after you pass away, but this may not be the case because of the process of probate.
Estate Administration
There is an estate administration process that must run its course before the heirs can receive their inheritances unless you take steps to avoid probate. Most people assume that a last will is the simplest vehicle of asset transfer, but if you use a will, the will must be admitted to probate.
In the state of New York, probate matters are handled by the Surrogate’s Court. Once the will has been admitted to the court, the document will be examined to determine whether or not it is valid. Assuming it is valid, the executor will pay final debts and prepare the assets for eventual distribution to the heirs.
A few decades ago, legal minds came to the conclusion that the probate process was too unwieldy. They wanted to streamline the process, and they wanted the entire country to utilize the same probate process. With this: mind, the American Bar Association worked alongside the National Conference of Commissioners on Uniform State Laws to create the Uniform Probate Code.
After a great deal of work, the final draft was approved in 1969. However, the goal of uniform adoption was never realized. Only 16 states are honoring the Uniform Probate Code in its entirety, though most of the states are using portions of the code.
We practice law in the state of New York. The Uniform Probate Code is not being utilized in New York, but nonetheless, the probate process is relatively efficient in the Empire State.
At the same time, there are steps that you can take to avoid probate if you choose to do so.
Revocable Living Trusts
If you want to facilitate asset transfers outside of probate, you could create a revocable living trust. With this type of trust you maintain control of the assets while you are living, so there are no risks involved. You could revoke or dissolve the trust at any time and it would no longer exist. The assets would once again become your direct personal property.
You would typically serve as the trustee while you are living, but you would name a successor trustee to administer the trust after you die. After your passing, the trustee would follow instructions that you leave behind in the trust agreement. Assets would be distributed to the beneficiaries in accordance with your wishes, and the probate process would not be a factor.
Free Probate Report
To learn more about the probate process, download our special report. This report is being offered free of charge, and you can visit this page to access the download: Smithtown NY Probate Report.
Mark S. Eghrari, Estate Planning Attorney
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