Services

Probate & Trust Administration

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Probate is the process in Surrogate's Court wherein your nominated Executor is legally empowered to marshal your assets and distribute your estate in accordance with your Will. Each county in New York State has its own Surrogate's Court. In New York County, it is located downtown across from City Hall at 31 Chambers Street.

 

For most clients, the probate process is straightforward and not overly expensive or time consuming. Once the Will is probated, the Court issues a Certificate of Letters Testamentary. It is with this certificate that your Executor can proceed to settle your estate.

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For some clients however, probate can be both costly and time consuming. If after consultation, I determine that probate avoidance is recommended, we will discuss your alternatives which typically include a Revocable Living Trust.

 

If you die without a Will, the law of Intestacy will dictate how your estate is distributed. This process is called an Administration rather than a Probate and an Administrator will be appointed by the court rather than an Executor. Probate is always preferable over an Administration as your Will can provide for special circumstances, tax efficiency and reduced settlement expenses.

 

Incidentally, your original Will is the only version that can be probated. If the original Will cannot be found after your death, the presumption is that you revoked it and a photocopy is of no use.

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Probate in the age of Covid: How long does it take?

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Pre-Covid, Probate took about 10 to 20 days from the date all of the necessary documents are filed in Court.  Documents include a Petition, Waivers from adversely affected parties, your original Will, Witness Affidavits, a certified death certificate and a few other documents depending on your situation.  (Notice of Probate, Affidavit of Heirship, Staples Affidavit, for example).  Covid changed quite a bit.  First, we experienced a huge spike in deaths in 2020 in conjunction with a complete shutdown of the Surrogate’s Courts.  The result is a huge backlog and the processing time depends on your County. Examples I experienced are as follows: Manhattan – up to 23 weeks, Brooklyn – up to 36 weeks, Queens – up to 17 weeks, Nassau County – up to 8 weeks.  In Pre-Covid times, I always filed my documents in person.  I sat with the Probate Clerk and was afforded a preliminary review.   If there was a simple omission, it was often fixed right then and there.  Covid ended “in person” filing for all Counties.  Documents must be filed electronically with the original Will and certified death certificate sent overnight.  Because of electronic filing it is much more difficult to do it yourself.  In fact, many attorneys who are not computer savvy are struggling as well.  So I’m sorry to say the answer to how long does Probate take?  It depends.  One shining star is Richmond County, the forgotten borough.  I had two Covid Probates and both were done in 2 weeks. Also Westchester County which was the first County in our area to mandate electronic filing long before Covid.

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Conclusion:  Is Probate necessarily a bad thing? Should it be avoided?

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Answer: No it is not necessarily a bad thing and yes in certain circumstances, it should be avoided.  Factors that influence my recommendation includes whether you are dis-inheriting any of your heirs and whether you own real estate in multiple states.  Pre-Covid, 95% of my Probates were straightforward with prompt results.  Covid has definitely thrown a wrench into the works.  Electronic filing is probably a good thing and its here to stay.  The backlogs hopefully will dissipate as we all settle into a new normal. The most recommended way to avoid Probate is with a Revocable Living Trust.  More on that later. 

 

Fiduciary Checklist

 

The following is a checklist of tasks to consider if you have been nominated to serve as an Executor by Will or appointed Administrator for a decedent without a Will.  Each estate may have special circumstances requiring special attention and therefore this list is not meant to be all inclusive.  Serving as an Executor/Administrator has become more challenging as a result of financial institutions implementing privacy protections and more of us opting to go paperless.  Beyond the list I have also included a sample form letter you will receive from the Court advising you of your obligations.

 

 

 

Fiduciary’s Checklist

 

1.  Confer with your attorney on all matters regarding the estate both before and after the Will is probated.

 

2.  Notify Post Office to forward mail.

 

3.  Make sure house and other dwellings have fuel during the winter months.

 

4.  Obtain a Federal tax I.D. number for the estate.

 

5.  Open a checking account and/or savings account for the estate.

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6.  Discontinue unneeded utilities.

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7.  Examine the contents of safe deposit box.

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8.  Search house and other places for valuable papers and assets.

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9. Inspect all real estate and study mortgages and leases.

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10. Examine all life insurance, real estate, and personal property insurance policies.

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11. Select qualified appraisers if needed for estate tax returns.

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12. Apply for Social Security and if applicable, Veterans death benefits.

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13. Investigate possibility of profit-sharing or pension death benefits.

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14. Review Income tax returns for past three years.

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15. Review estate securities and keep close observations of stock market and investment trends.

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16. Estimate administrative costs and determine amount of assets to be sold to raise cash.

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17. Make sure all tax returns are filed on time.  Estate tax returns are due nine (9) months after death.  Most estate income tax returns are filed annually and are due April 15th.

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18. Check for expenses and other properly deductible items which can be used in preparation of federal income and estate tax returns.

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19. File the required inventory of decedent’s assets with the Court within 9 months of the date of issuance of your Letters Testamentary or Letters of Administration.

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20. Prepare formal or informal accounting as the case may require and distribute the assets of the estate to the person or persons entitled thereto.

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21. Obtain receipts and releases or satisfactions of decree from beneficiaries, and decree settling account where formal account and decree thereon are necessary in your particular situation.

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22. SCPA Section 710(4) provides in part: No fiduciary shall remove property of the estate from New York State without the prior approval of the Court and upon filing a bond if required.

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23. File Affidavit of Completion within 2 years of your appointment or file report of Estate Not Fully Distributed if estate isn’t fully settled.

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