Probate is the legal process that takes place when someone dies and includes admitting the decedent’s Last Will and Testament (the “Will”) to court, inventorying and marshalling the estate’s property, paying the decedent’s debts and taxes, and then distributing the estate assets to the decedent’s beneficiaries as outlined in their Will.
Initiating the probate process generally requires that the Executor of the estate file a probate petition, usually with the assistance of an attorney. Depending on the complexity of the decedent’s family relationships and the assets they owned at their death, the probate process typically takes anywhere from a few months to a year or more. Unfortunately, the more drawn out and complex the probate process is, the more costly and mentally taxing it can be on the decedent’s surviving family members.
If a decedent owned real property in more than one state, as some New Yorkers do, it will be necessary to engage in probate in multiple states. The second probate process, say, for instance, in the state where the decedent owned a vacation home, is called ancillary probate. Ancillary probate can add to the length and cost of the process of wrapping up an estate but thankfully a qualified estate planning attorney can assist you in choosing a planning method during your lifetime that will avoid the need for an ancillary probate after your death. It is important to note that these mechanisms must be used while you are alive. After you have passed away, it is too late for your Executor to avoid ancillary probate proceedings. Therefore, the time to act is now.
The revocable trust is the most utilized planning tool for ancillary probate avoidance. Revocable livings trusts are family agreements created during your lifetime which can own property. An attorney would then prepare a deed transferring ownership of your real property to the trust is executed by you. The trust can own multiple properties across multiple states. The trust will name beneficiaries who will become the owners of your properties at your death. Therefore, after your death, no probate proceeding needs to be brought in New York or any other jurisdiction as long as all assets are in the trust. This is a highly useful tool in that it allows you to retain control over your property during your life and it can easily be changed or revoked if circumstances change.
Another common method of avoiding ancillary probate is to transfer ownership of the property to a joint owner with rights of survivorship or as tenants by the entirety (if done between spouses). This means that the property will pass automatically to the surviving owner at your death without the need to engage in any further legal processes. Spouses typically own real property as tenants by the entirety and therefore ancillary probate only becomes an issue when the surviving spouse ultimately passes away. It should be noted that adding a joint owner as a “tenant-in-common” will not accomplish the goal of avoiding probate. It should be noted that adding a joint owner comes with a host of legal issues which should be discussed with an attorney and it is generally less preferable to add a joint owner than it is to fund a living trust in order to avoid probate.
If you have any questions on how to avoid probate, call the Law Offices of Roman Aminov, P.C. at 347-766-2685 to speak to a knowledgeable estate planning attorney about the best way for you to plan your estate to streamline the process of administering your estate for your Executor and your surviving loved ones.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed attorney in your state.
Call the Law Offices of Roman Aminov, P.C. to speak to a knowledgeable estate planning attorney about what type of trust is best for you and your family.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed local estate attorney in NY or your state.
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