What is Probate?

As an attorney that focuses on estate planning, I am frequently asked what “probate” means. Technically, probate is the court procedure by which a decedent’s Will is either proved to be valid or found to be invalid and unenforceable. However, many people use the word probate in a more general sense to mean the process by which the assets of a decedent are collected and distributed in accordance with the wishes set forth in decedent’s Will.

When someone who has a Will dies, the person the decedent chose to handle his estate (an executor, if it is a man; an executrix, if it is a woman) generally has the responsibility of commencing a probate proceeding. Such proceedings are brought in the Surrogate’s Court in the county where the decedent lived at the time of his death. The probate process begins with the preparation of a petition that must be filed with the Court, along with the original Will, an original death certificate and a filing fee that is based on the estimated value of the property passing under the Will. In the petition, information about the decedent and his estate is provided, along with the names, addresses and relationships of family members and anyone named in the Will.

Notice of the probate proceeding must be given to certain individuals and consent to the appointment of the executor and the probate of the Will is generally requested from individuals with standing to contest the Will. Provided no one appears to object to probate, the Court will issue a decree admitting the Will to probate and ordering the issuance to the executor of Letters Testamentary.

Once the executor receives Letters Testamentary, he can start the process of locating the decedent’s assets, closing bank and brokerage accounts, managing and/or selling real estate and generally marshalling the assets of the decedent. If the decedent owned property outside New York, the executor must apply for Ancillary Letters from the court in the state where the real property is located. Without such letters, the executor will not have the authority to sell the out-of-state property.

Before distributing the decedent’s assets, the executor must use the funds available to the estate to pay the decedent’s debts, including any estate taxes that may be due. Generally the decedent’s assets cannot be distributed to the beneficiaries under the Will until all of the decedent’s legitimate debts have been satisfied. If estate taxes are owed, the executor should file estate tax returns. The executor should also file a final personal tax return for the decedent if income taxes are due on the income earned by the decedent in the year he died. Finally, the executor must file with the Court a copy of the estate tax return or a completed inventory form.

Once all of the decedent’s debts are paid and distributions to the beneficiaries made, the executor may be required to file an account with the Surrogate’s Court. The account identifies all estate assets received and paid out by the executor. After the account has been settled, the probate process is complete.

While probate is often less costly and cumbersome than it used to be, strained family relationships, missing or incomplete financial records, claims from creditors or complex distribution plans sometimes make the administration of an estate quite complicated. Even small estates may involve significant legal issues that must be addressed by the executor. To avoid problems that may increase the costs of administering an estate and delay the completion of the probate process, it is best to seek the assistance of an attorney before attempting to probate a Will.

This article first appeared in the October 7, 2010 issue of the Times Beacon Record Newspapers.

Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.