4 Things You Must Know About the New York Probate Process

April 29, 2022
Alec Borenstein

The term “probate” refers to a situation where surviving family members must settle the estate of a deceased individual. It also involves the court system in New York, which is responsible for supervising the process and validating someone’s last will and testament.

 

The entire probate process has its own complexities and nuances that you have to navigate to the best of your abilities. Depending on the size of the deceased individual’s estate, probate can present many different challenges. That’s why we want to prepare you and explain four things you must know about the probate process.

 

#1 – New York Probate Is Often Necessary

 

In the state of New York, probate is necessary when assets are left behind that need to be distributed to certain individuals. In order to open probate, you must submit the last will and testament of the deceased individual to the New York Surrogate Court in the county in which this individual resided. Probate also requires that all assets are identified, located, and secured.

 

However, keep in mind that certain assets with named beneficiaries will transfer automatically. This includes life insurance policies, retirement funds/pensions, and assets held in a trust.

 

#2 – New York Probate Can Be Time-Consuming

 

Even if you’re dealing with an estate of moderate size, the probate process can take months to undergo. The average time that it will take for a person to settle an estate in New York can vary depending on the county that you’re dealing with. This means that it could take anywhere from a few months to well over a year to settle your estate. When you partner with an experienced probate attorney in New York, however, you have the added advantage of having the peace of mind that your attorney will work diligently to help the process move along as quickly as possible.

 

#3 – New York Has Small Estate Proceedings

 

In New York, if someone passes away and leaves behind a will, their estate can be probated. This means that the courts will have to intervene and provide oversight at every step of the process. Depending on the size and assets of the estate, it’s possible that you may be able to go the route of a small estate proceeding. There are certain standards that the estate has to fall into in order to take advantage of this option. For example, if your loved one owned a house or land in their name alone, you will not be able to take the small estate route. Also, if your loved one had assets (including real estate) that are worth more than $50,000, you will need to formally open probate.

 

Comparatively speaking, small estate proceedings are a much simpler version of probate. They don’t take nearly as much time to complete because you don't need consent from the distributees of the decedent’s estate to settle everything.

 

#4 – Probate Proceedings Can Experience Delays

 

Even if someone leaves behind a will, certain factors can prolong the process in New York. For example, a surviving family member can challenge the decedent’s will. The courts will then have to undergo several different steps to validate it. This includes a review of the decedent's medical records to assess their mental capacity at the time the created the will.

 

Here are some other examples of what can delay probate in New York:

 

  • Missing/inadequate information
  • Notification of all relevant parties
  • Failure to file certain court documents
  • Difficulty obtaining death certificates

The state of New York is very keen on notifying anyone who’s impacted by the will of a deceased relative. The courts require the executor to show that they were diligent in searching for all known or unknown parties, including relatives who’re overseas.

 

Do You Need an Attorney?

The simple answer is yes – you need an attorney to help you simplify the process of settling a deceased family member’s estate. Here at Borenstein, McConnell, & Calpin, we provide probate and estate litigation services for residents of New Jersey and New York. Our goal is to help you protect your assets and prepare your family for a financially favorable future.

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Borenstein, McConnell & Calpin, P.C. is a Wills & Estate Planning law firm serving Central and Northern New Jersey, as well as New York City. We strive not only to give you a great client experience, but to become your trusted adviser for life. To reach Alec, please send an email to alec@bmcestateplanning.com.

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