Frequently Asked Probate Questions

As a probate lawyer, I am often asked many important questions about the probate process. I have decided to make a list of some of the most frequent questions in an effort to help people understand the process better.

What is Probate?
Probate is the process of presenting a last will and testament to the court to have it admitted as such by the Surrogate (judge).

If I Have a Will, Can I Avoid Probate?
No. In fact, the ONLY way to end up in probate is by dying with a will. If a person dies without a will, they go through a similar process called Estate Administration.

How Long Does Probate Take?
Probate can take anywhere from seven (7) months and longer. That is the minimum time that creditors have to make a claim against the estate after it is opened. Some very complex estates can take many years.

Is There a Time Limit To Start Probate?
No. Although it is advisable to start probate as soon as possible after a person passes, I have worked on cases in which probate was not started until more than 20 years after the decedent's death. However, a delay in probate can result in the court penalizing the person who caused the delay if it harms beneficiaries or creditors.

What Are The Costs of Probate?
The Surrogate’s Court charges a filing fee based on the size of the estate, ranging from $45 for smaller estates to $1250 for estates with probate assets of over $500,000. Estates with assets under $30,000.00, known as small estates, have a filing fee of $1. A lawyer will charge a flat fee, hourly fee, or, in rare situations, a contingency fee to handle the matter.

Can a Probate Proceeding Be Challenged?
Yes. An heir of the decedent, known as a distributee, can contest either the will or the appointment of the executor, or both. Common reasons for contesting a will include:

(1) Lack of Testamentary Capacity: the testator did not have the mental ability necessary to make a will.

(2) Undue Influence: the testator was improperly influenced by a third party in making the will.

(3) Undue Execution: the will was not properly executed as required by EPTL 3-2.1.

(4) Fraud: The testator was induced by fraud to make the will.

(5) Revocation: The will was revoked, either through the execution of a new will, or by simply revoking the presented will.

(6) Forgery: The signature of the testator was forged.

Does Jointly Owned Real Estate Go Through Probate?
That depends on the type of asset and the type of ownership. Real estate owned by husband and wife together avoids probate and goes to the surviving spouse. Any real estate owned as “joint tenants with rights of survivorship” also avoids probate and goes to the remaining living owners. Real estate owned as “tenants in common” does go through probate.

Do Accounts With Beneficiaries Go Through Probate?
IRAs, 401(k)s, investment accounts, bank accounts, and life insurance policies with listed beneficiaries avoid probate entirely. The listed beneficiaries need to submit a death certificate and fill out some forms in order to receive their money.

Do I Need an Attorney to Probate a Will?
While there is no requirement that an attorney probate a will, it is generally advisable to hire an attorney to assist in the process. The process is too daunting, with too many technical requirements, for most people to handle it on their own. A qualified probate attorney will have the necessary experience and knowledge to expedite the process and avoid unnecessary expense and delays.

If I Hire an Attorney, Do I Need to Go To Court?
The vast majority of probate proceedings do not require a court hearing and therefore, you will most likely not need to appear in Surrogates Court. Even if a court hearing is necessary, the probate attorney will not require your presence in most cases.

When Are Taxes, If Any, Due?
Estate taxes, if required in your estate matter, will be due within 9 months of the decedent’s death. The final income tax return will be due by April 15th of the year following the decedent’s death. There may be other taxes, such as income taxes on IRA distributions, which may be due, and a qualified tax professional should be consulted.

What Are Ways I Can Avoid Probate?
Feel free to read our article on avoiding probate here.

To speak with a Brooklyn and Queens Estate Lawyer about your particular matter, please call 347-766-2685.

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