There is a frequent misconception that if you have a Will, your estate will avoid Probate.  

If there is a Will, then the Court procedure for proving the Will to be valid is called “Probate”.  If there is no Will, then the Court procedure for appointment of a representative of the estate is called “Administration”.  Either way, if a person dies leaving assets in their individual name with no beneficiary, there must be a court process by which someone will be granted full authority to collect and disburse the decedent’s assets.

If a person wants to designate who the Executor and ultimate beneficiary of the estate is, that person must make a valid Will that specifies these outcomes.  Without a Will, the Court will make a determination as to who will be in charge of the estate and who the estate’s ultimate beneficiaries will be.  Sometimes the outcome will be quite different that the decedent would have intended.  

In most cases, Probate is not unduly burdensome, although there is a cost in legal and court fees, as well as a minimum time that the estate must remain open so that creditors may file claims against the estate.

How does the Court determine whether or not a Will is valid?  There is a general procedure that must be followed for all estates.  Depending on the circumstances of the case, there may be additional procedures.  

A formal Petition is filed with the Surrogate’s Court that lists both the beneficiaries of the Will and all next-of-kin, even if they receive nothing under the Will.  The Court will require an affidavit and family tree, from a disinterested person, that shows the next of kin.  The Court will rely on this information to determine the completeness of the family tree information. 

All next-of-kin (“distributees”) can consent to the probate of the Will.  Where the distributees do not consent, they are given a Citation with the opportunity to Contest probate.  

Assuming there is no Contest and all papers are in proper order, the Court will issue “Letters Testamentary”.  Only after Letters Testamentary are issued does the Executor have authority to collect and liquidate assets and pay bills.  Periodic reports and an inventory are later provided to the Court.  Estate income tax returns must be filed.  After a minimum of seven months, the Executor/Administrator makes final distribution to the beneficiaries according to the law. Ultimately, the beneficiaries must sign releases indicating they are satisfied they received what they were entitled to under the law and then the Court will close the estate.

In most cases, this is not terrible or unpleasant.  If this sounds like too much trouble, particularly if you have a difficult family situation, be proactive and set up a plan where your assets will pass by a joint ownership, beneficiary designation or trust to your intended beneficiaries.   You want the process to go as smoothly, efficiently and cost-effectively as possible.  We can help make that possible.

Law Office of Kathleen M Toombs PLLC

157 Barrett Street, Schenectady, NY  12305

(518) 688-2846

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