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ESTATE & TRUST ADMINISTRATION

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What is Probate? Probate is the legal process by which your Will is presented to the Surrogate's Court after your death to have it declared valid and to have your Executor appointed. Simply stated, probate is the process of transferring the property of someone who has died (the decedent) to the persons named in the Will (the beneficiaries). However, your Executor must be appointed by the Court in order to collect and distribute your assets as stated in your Will. If you pass away without a Will or Trust, then the laws of intestacy decide who receives your assets, not you. If you created and funded a Revocable Living Trust, then your assets will not have to pass through the probate process.

What steps must be followed?

Because probate is a legal process, there are many steps that must be followed before your Executor can be appointed. For example, signatures must be obtained from your heirs stating that they agree with your Will and will not contest it. Your heirs must agree not to contest your Will, even if they are not named as beneficiaries. This can be very difficult in second marriage situations or if you have minor children or grandchildren, disabled beneficiaries or heirs with whom you have lost contact. If a child dies before you and assets are left to minor grandchildren, then the Court will need to appoint a separate attorney to represent them. The same is true if any of your heirs are legally incapacitated, such as a child with mental retardation or a spouse suffering from Alzheimer's disease.

In addition, your named Executor must also submit a family tree, petition, death certificate and affidavits from the witnesses to your Will. There are also Court filing fees, and often expensive Executor's commissions and attorneys' fees which must be paid, leaving less to your loved ones. Upon the receipt of the required information, and if no heirs contest the Will, the Court will appoint your Executor. Thereafter, estate administration begins which is the process of collecting and distributing assets. This process takes a minimum of seven months but typically takes up to eighteen months. This means that your surviving spouse and children must wait that long to receive their inheritance. Unfortunately, probate is unpredictable and often time-consuming and costly. That is why many people choose to avoid it. If you are fortunate that all of your heirs agree, there are no minor or disabled beneficiaries and your assets are centralized, the process can proceed smoothly.

How Can I Avoid Probate? Consider using a Revocable Living Trust to distribute assets after your death. If you transfer your assets (i.e., residence, interests in real property, bank accounts and brokerage accounts) into your trust and name your trust as the beneficiary of other assets (i.e., retirement plans and life insurance), leaving no assets in your individual name when you die, then probate can be avoided. After you die, your successor trustee will have title to the assets and can distribute them according to the instructions contained in your trust.