Probate - Westchester County, NY

Elder Law Cortlandt NY

Probate is the legal process where a decedent's estate is administered by the court; it is the court process through which a Will is proved to be valid or invalid. Where a person leaves an estate without a will, there is an administration in intestacy. The court appoints a personal representative to distribute the decedent's assets according to the laws of intestate distribution, which means distribution of assets based on hereditary succession.

The probate process is the collection or marshalling of a decedent's assets, the liquidation of liabilities and the payment of necessary taxes and finally the distribution of the property to the rightful heirs.

A probate proceeding may involve formal or informal procedures; it may also involve contested proceedings depending on whether the Will is void because of incapacity of the testator, or the failure to comply with execution formalities, among other reasons.

In probate proceedings there are always accountings of the assets and finances of the estate.

There are reasons to avoid probate, largely among them are the fees set by statute paid to attorneys, executors and administrators can be high in comparison to the size of the estate. Probate can also be time consuming and even when performed efficiently involve court fees, published notices and court hearings. A statutory time for creditors to file their claim also contributes to delays to finalize and distribute the estate to the decedent's heirs.

There is a way to avoid probate, that comes from creating trusts in which the transfer of all of the decedent's wealth and possessions passes through a trustee. Also, a person can put all property in joint name with right of survivorship so that when a decedent passes, the property goes to the survivor of them. There is also property that passes by operation of law, this means that this property will pass with an 'automatic' right to the title of the property on the death of the property holder, and these assets may avoid probate altogether. These assets include jointly owned property; property that passes by contract which includes trusts, annuities, retirement benefits and life insurance; and payable on death accounts which are also called Totten trusts.

Everything else is considered probate property if it does not pass by contract or operation of law.