Five Things to Know About the Probate Process

In the wake of a loved one’s passing, the last thing you may want to think about is the legal issues you may need to deal with. Once you get involved with probating an estate, however, you may wish you had been better prepared beforehand. Here are five things you need to know about the probate process:

1. Probate is when a will gets administered
   • In simple terms, “probate” is the process by which a will is validated and administered by the appropriately named probate court. During probate, the will is examined to determine its validity, and all property belonging to the testator (the person whose estate is being probated) is examined to make sure everything is appropriately accounted for. This is a process that can take months, or even years, depending on the size and complexity of the estate.
2. The executor represents the estate
   • Most of the time, a person’s last will and testament will name someone to be the executor of the estate. The executor is the person who represents the testator’s estate, and is responsible for ensuring their will is carried out. The executor has a great deal of power over the process, and if the will is ever contested, it is the executor who represents the estate in that proceeding.
3. Not all property is probated
   • Thankfully, not all property needs to go through the full probate process before it can be distributed. This “non-probate” property includes money held in a trust, payouts from life insurance, or any other legal instrument that automatically executes upon a person’s death. While the court still gets a say in matters, this non-probate property can save a great deal of time and energy in the overall probate process.
4. You may need to deal with intestate property
   • An estate is said to be “intestate” when it has not been appropriately allocated in a person’s will (or in another testamentary instrument, such as a trust). Intestate property typically manifests in one of three ways: when someone dies without a valid will, when some or all of the will is successfully contested, or when someone fails to allocate all of their property in their will. If this happens, you may find yourself getting a headache trying to figure out who the intestate property is supposed to go to.
5. Creditors and tax collectors will try to claim a share
   • Just because someone has died does not mean tax collectors and debt collectors are done trying to get their share. Amidst everything else going on, you may have to contend with the debts the testator occurred in life, and try to preserve everyone’s inheritances from creditors who are more interested in having their debts paid off than the struggles you are dealing with. Fortunately, there are ways to keep them at bay, if an estate is properly planned out ahead of time.

The elder law attorneys at David J. Lorber & Associates, PLLC will thoroughly analyze your estate and work with you to determine the best means of transferring your assets, minimizing taxes, and ensuring your needs are met. For comprehensive estate planning services in New York, call David J. Lorber & Associates, PLLC at (631) 750-0900 or contact us online to schedule a free consultation at our Setauket office.