PROTECTING YOU AND YOUR FAMILY'S FUTURE BY PLANNING TODAY
PROTECTING YOU AND YOUR FAMILY'S FUTURE BY PLANNING TODAY
Probate is the legal process of proving a will’s validity. When someone dies with a will, or without an estate plan altogether, their estate will have to pass through probate before their loved ones can inherit. In New York, this process usually takes a minimum of seven months but can take years for more complex cases. Complexities can stem from will contests or allegations of fraud or undue influence. The court must validate the document before it allows the assets to be distributed. As such, the court would first have to sort out any of these complexities to make sure the will is indeed valid.
Each will names an executor. The executor is the person who spearheads the probate process, completing all of the necessary steps, and distributing the estate as the will directs them to. The job of the executor can be stressful and time-consuming, which is another reason why creating an estate plan that can bypass probate is a savvy move. The executor will have to notify beneficiaries and creditors of the decedent’s death, file a probate petition with the court, pay off all of the estate’s debts (with money from the estate), and take inventory of all of the assets. While the executor may receive some payment for their time and effort, the job of the executor can nevertheless be very burdensome.
The total timeline can vary significantly depending on factors like the size of the estate, will contests, efficiency of the courts, and the court’s ability to validate the will. The rule of thumb in New York is that this process will take at least seven months but can easily take upwards of a year or longer. The seven months is a necessary minimum because credits have seven months to make a claim to collect a debt from an estate. If the estate is distributed prematurely, the creditors can seek to take back assets that have been distributed to the heirs to settle the debts.
If a creditor seeks to make a claim after the seven-month period, the claim may be heard by the courts, though nothing may come from that claim. If the claim succeeds, the creditor can seek to recover the estate’s assets, even if they have already been distributed. An heir would only be responsible for the assets they have gotten from the estate – nothing further. Due to the necessary seven months to allow creditors to collect, and the backlogged nature of New York courts, it is likely this process will take a year or longer.
There are three ways to avoid probate in New York, and only one of those ways is easy to control. The first way that you can avoid probate is to have an estate of less than $50,000.
The second way to avoid probate is to have an estate with no probate assets. Assets that have to pass through probate are assets that are solely distributed from the will. For example, a retirement account with a named beneficiary does not have to go through probate while a sum of cash, or a home, would have to go through probate.
The last and most controllable option is to create a living trust. Trusts do not have to go through probate like wills do. Trusts name a trustee who will be tasked with doling out your assets upon death. Here, the task of distributing assets and following your wishes falls to the trustee, not the executor and the courts.
Deciding between a will versus a living trust comes down to personal preference. Depending on your priorities and the assets you have, one option may be better than the other. If, however, you believe bypassing probate is worthwhile, then a living trust is the way to go.
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