Decedent's Estate & Probate
Probate is the process by which a writing that is a last will is validated by the court. Typically, a last will is filed with the court for probate where a person who dies owns assets or property in his or her name alone.
New York estate lawyers know that preparing an effective estate plan is an important step to facilitate the probate process. A Will in New York must be signed and witnessed according to the provisions of the Estates, Powers and Trusts Law. Wills are typically in writing and are signed by the testator at the end and are witnessed by at least two attesting witnesses. When a Will is prepared by a lawyer and the signing is supervised by an attorney, the law provides certain presumptions as to its validity. The witnesses customarily sign an affidavit at the signing that the will was properly executed. This self proving affidavit helps expedite and simplify the probate process, Probate proceedings can become complicated and subject to contests when a person does not follow the proper Will execution procedure.
Once the probate process is completed the decedent's affairs or his estate can be administered by the Executor appointed by the court in the probate proceeding. Decedent's estates typically involve the collection of assets and the payment of bills and taxes. The probate process and the administration of the decedent's estate can take many months or years and can involve complex tax, financial and other issues.
In most instances, probating a Will does not involve estate litigation. The typical situation concerns close family members such as a spouse and children all of whom cooperate with each to obtain the appointment of the Executor and the distribution of estate assets.
It should be pointed out that a decedent's probate estate is different from his gross estate. The gross estate, which is used for estate tax purposes, includes assets that are held with others as joint tenant or are payable to designated beneficiaries such as life insurance or retirement funds. These assets that pass by operation of law are not part of the probate proceeding.
There may be occasions when a person's estate plan indicates that it would be advisable to try and avoid the probate process. For example, if a person wants to disinherit a distributee such as a child, it is preferable not to subject a Last Will to a possible contest. In a probate case the decedent's children must be given Court notice of the probate. However, no notification is required to distribute assets held in a living trust which does not have to go through probate. Thus, an estate plan might benefit from a living trust whereby all of the persons assets are transferred to the trust during the person's lifetime. These living trusts are revocable and as the trustee, the creator can remain in full control of the trust until death.
I have many years of experience working with and advising clients regarding probate and the administration of decedents estates.
I graduated in the top 10% of my class at New England School of Law in Boston and served on the prestigious “Law Review.” I have been an attorney at law in my own law practice in New York City since 1985.
You can contact me by phone at (212) 355-2575 or e-mail