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How does probate work?

On Behalf of | Aug 11, 2023 | Estate Planning, Probate

The probate process begins with establishing an estate representative, who should act in good faith on behalf of the estate. Consider appointing an estate representative early in your estate plan. It should be someone you know who has the capacity and due prudence to carry out your wishes effectively. More importantly, it should be someone whom you trust and will act in the best interests of the estate and your beneficiaries.

Determining the estate administrator

If you do not appoint an estate administrator, the New York State Surrogate’s Court will hold a probate proceeding to determine and designate an estate fiduciary. The Surrogate only appoints an executor or administrator once they deem the will is valid. That would mean a petitioner filed the petition for probate.

The estate administrator oversees and executes the probate process. If you appoint an estate administrator, they will be the executor of your estate.

Filing a petition for probate

The executor will file your original will and certified death certificate with the petition for probate in the Surrogate’s Court. They must also submit all the necessary supporting documents and pay the filing fee.

Notifying interested parties

The executor must notify the persons with a pecuniary interest in the estate that the probate process has started. They should give a notice issued by the Surrogate’s Court to the beneficiaries and heirs of the estate and the creditors as well.

Proving the validity of the will

Probate is the process of proving that your will is valid and enforceable. You should have executed it lawfully and according to the legal standards. Furthermore, you should have been of sound mind and body when you created and signed the will. The interested parties might contest the will or the administration of the estate, which can prolong the probate process.

Inventorying the assets of the estate

Once the will is considered valid, the relevant parties have received the notice and the Surrogate determines the executor is the right person for the job, the executor can fulfill their duties to the estate. The executor will locate and gather all your assets and get appropriate valuations.

Paying the liabilities and taxes

The executor should settle all your estate’s outstanding debt and tax obligations before they can distribute the estate. If the estate is not liquid, the executor may have to sell some of your assets to pay for these. However, administration and funeral expenses take precedence over debt.

Distributing the estate

The executor should make an accounting of all the financial transactions they have made on behalf of the estate and present this to the Surrogate’s Court. Once the Surrogate approves the records and statements, the executor can now distribute the estate to the beneficiaries and heirs.

Closing the estate is the final step of the probate process. The executor should file a declaration with the Surrogate’s Court to indicate the completion of the probate process. The probate process can be a lengthy and costly procedure if your estate administrator does not have sufficient experience.