Although most assets in your estate may pass through the probate pass process, other assets may not. It often depends on the type of assets or how an asset is titled. Probate is a court supervised process occurring after your death. It takes place in the state where you were a resident at the time of your death and addresses the many aspects of your holdings in your name when one dies including all of your financial assets, real estate, personal belongings, and unpaid taxes. If you have an estate plan, your last will names an executor, the person who takes charge of your estate and settles your affairs.

How exactly does the probate process work?  If your estate is subject to probate, your estate planning attorney files an application for the probate of your last will with the local surrogate court. The application, known as a petition, is brought to the probate court, along with the last will. That is usually when the petitioner files an application for the appointment to be named as the executor of the estate.

First the court must rule on the validity of the last will. Does it meet all of the state’s requirements? Was it witnessed properly? If the last will meets the state’s requirements, then the court deems it valid and addresses the application for the executor. That person will also meet the legal requirements of your state. If the court agrees that the person is fit to serve, it approves the application.

The executor plays a very important role in settling your state. The executor can be a spouse or a close family member. However there are situations when an attorney or a  bank trust officer could be a safer option. The executor needs to be completely trustworthy. Your fiduciary will have a legal responsibility to be honest, impartial and put your estate’s well-being above the fiduciary zone. If  your appointed executor does  not have a good grasp of financial matters, your  appointed executor, who is called the fiduciary should t have the common sense to ask for expert help when needed.  You could consider paring your family representation with a profession executor if the value of the estate can warrant the payment of two commissions. This co executor option can provide  both family sensibilities and legal or financial expertise.

Here are some of the tasks the fiduciary must address. One: finding and gathering assets and liabilities. Two: inventorying and appraising assets. Three: filing the estate tax return if needed and your last income tax return. Four: paying debts, managing creditors and paying taxes.  Five: distributing assets to the named heirs in the Last Will. Six: providing a detailed report of the estate settlement to the court and any other parties.

What is the probate court’s role in this part of the process? It depends on the state. The probate court in  NY is more involved than other states. If the state allows for a less formal process, it’s simpler and faster if the estate is complicated with multiple properties, significant assets and multiple errors, probate can take years. New York Court has a rather strict procedure. If there is no executor named in your last will, the court can appoint an administrator from those available next of kin. If you do not have a last will, the court will also appoint an administrator to settle your state following the laws of the state. This  can be an unfortunate or undesirable scenario, since your assets may be distributed in ways you never wished.

Does all of your estate go through a probate process? With proper estate planning, many assets can be taken out of your probate estate, allowing them to be distributed faster and easier. How assets or titles are filed determines whether they go through probate. Any assets with the named beneficiaries passed directly to those beneficiaries are outside of the estate. That includes life insurance policies and retirement plans with named beneficiaries. It also includes assets titled jointly with rights of survivorship, which is how most couples own their homes. Your estate planning attorney will discuss how the probate process works in your state, how to prepare a last will, and how to distribute your assets as efficiently as possible. Contact our firm today for help with these issues.

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