The Facts: My father died 2 years ago. My mother is receiving hospice care. In her Will my mother leaves her estate to me and my sister. Her Will provides that my estranged brother who has not been seen or heard from by anyone in the family for over a decade is not to receive anything. Even though he has not had contact with my family for so long, I understand that he must be given notice of the probate of my mother’s Will.

The Question: In light of the additional time and expense involved in providing notice to my brother, does it make sense for my mother to gift her assets to me and/or my sister now to avoid the probate process?

The Answer: Although your mother could avoid probate by gifting all of her probate assets to you and your sister, I would not recommend that approach since satisfying the notice requirement relating to the probate process is not particularly burdensome or costly. In fact, depending on the type and value of the probate assets (assets passing under a Will) owned by your mother, your brother may not be entitled to notice.

How it Works: In order to avoid probate, your mother will have to either gift to you and your sister everything she owns outright, or change the title to her assets so that they are held jointly with a right of survivorship in favor of the joint tenant. In addition, she will have to confirm that living beneficiaries are named on any retirement accounts, pensions, life insurance policies and other accounts/investments (known as non-probate assets) she may own that pass upon her death automatically to a named beneficiary. In other words, your mother will have to make sure that she does not own anything in her own name and that the beneficiaries on anything designed to pass upon her death will pass to the intended beneficiaries and not to her estate. If any significant probate asset is left in your mother’s name, or if any of her non-probate assets pass to her estate upon her death, making them probate assets, your mother’s Will may need to be probated despite her efforts to avoid the process. The exception to this general rule is if your mother’s probate assets are valued at less than $30,000. If that is the case, rather than offering the Will for probate, you would commence a Small Estate proceeding and request that the Court name you as the voluntary administrator of your mother’s estate. Notice to your brother will not be required if you commence a Small Estate proceeding.

In light of your mother’s condition, she may find that transferring her probate assets and confirming that her non-probate assets will not pass to her estate is quite burdensome and costly. In addition, there may be adverse capital gains issues for you and your sister if your mother gifts appreciated property to you during her life rather than leaving it to you in her will.

Rather than dealing with capital gains, and the burden/cost of transferring assets, it may be easier and less costly to simply probate your mother’s Will. While the law requires that your brother receive notice that the Will is being offered for probate, if the Court is satisfied that you made a reasonable effort to locate your brother, you will be allowed to give him notice by publication. Although publication may delay the probate of your mother’s Will by a few months, once publication is complete, the probate of your mother’s Will will proceed in the same manner as it would have without the need for publication. Unless your mother’s assets were quite limited, I suspect that the cost to your mother’s estate of the search and the publication are likely to be less than what it would cost your mother to transfer all of her assets to you and your sister before her death.

This article first appeared in the May 3, 2012 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.