There are fundamental parts of estate planning and the aftermath of a person’s death in New York that must be understood. One is probate. Probate can be confusing to some as there is legal nuance to sift through. For the executor and people who will receive property as part of the decedent’s will, it is important to know what probate is and what must be done to satisfy the court so the process can move forward.
Understanding probate and when the court is satisfied
When a person dies and there is a will, it must go through probate. The person – known as the testator – will have named an executor to oversee the estate. The executor is responsible for filing the original will and a death certificate. They must provide a form known as the probate petition. This will be submitted to the Surrogate’s Court. Probate allows the person’s assets to be distributed according to the will.
While probate is generally straightforward, the court must still be satisfied about certain issues. The court will assess the facts of the case and want to know that the will is genuine and its execution valid. For example, if there are issues with the will such as multiple wills being produced, this could delay the process and lead to legal disputes. Regarding its execution, there are basics such as two disinterested witnesses having been present. If there are challenges, the court must investigate them.
Once the will is found to have been duly executed, the testator deemed competent and there was no coercion, undue influence or other issues that might make it invalid, it can move forward to probate and the property distributed to the heirs.
In some cases, people want to avoid probate. This is due to it being a time-consuming process that can be costly. Other reasons to avoid probate include wanting to keep the details of the person’s estate out of the public eye. Since probate is a public record, it will be available for viewing.
Know the ins and outs of probate
When creating an estate plan, probate must be considered as part of the entire process. That includes what it is entails, what the court will need and how it impacts people who are named in the will or expected to be named in the will. For these issues, it is imperative for the testator, the executor and others to be fully prepared for every possible scenario.
