Navigating Probate: A Simple Guide to Estate Administration

Managing legal and administrative tasks after the loss of a loved one can be a lot to handle, especially when it comes to probate.  If you've heard of probate, you might think it sounds confusing or stressful. However, probate is a legal process to ensure a person's estate is administered properly and that assets are distributed according to their wishes. 

What is Probate?  

In New York State, probate is a surrogate’s court-supervised proceeding (testate) where a will is authenticated and an executor is appointed to manage and distribute the estate.  

When there is no will (intestate), an administrator is appointed by the surrogate’s court to manage and distribute the estate assets according to state law. 

Key Steps in the Probate Process  

1. Gather Required Documents  

Some of the documents that are required for an estate proceeding include:

• The original will;

• Death certificate;

• Obituary;

• Family Tree;

• List of assets owned by the decedent at time of death (i.e. bank accounts, real property, stock and retirement accounts);

• List of decedent’s debts; and 

• Copies of filed tax returns.
  

2. File the Probate Petition  

The probate process starts with filing a Petition for Probate and request for Letters Testamentary (will) or Letters of Administration (no will).  Petitions are filed with the Surrogate’s Court of the County where the decedent passed away.  In addition to the petition, beneficiaries and distributees (persons entitled to inherit if there were no will) are notified of the probate proceeding.

Information on the petition generally includes:

• Name and address of the petitioner (Executor or Administrator); 

• Decedent’s name, address, county, and date of death;

• Names of attesting witnesses of the Last Will;

• Survivors of the decedent;

• Names and addresses of beneficiaries and distributees and 

• Approximate value of all property owned by the decedent. 
  

3. Court Validation of the Will  

The court confirms the will’s validity and the executor’s authority. Once approved by the court, the executor receives Letters Testamentary, giving them the legal authority to settle legal debts of the decedent and transfer ownership of the decedent’s assets. 

When there is not a will, the Surrogate's Court issues Letters of Administration to the administrator, granting them the authority to manage and distribute estate assets based on state laws. 

4. Management of the Estate  

In New York, an estate is required to stay open for at least seven months to allow creditors to file claims against the estate. This waiting period is required even if no creditors are anticipated. During this time, responsibilities of managing an estate by either an executor or administrator include:

• Identify, locate, marshall and value assets;

• Pay legal debts;

• Identify and notify creditors;

• File appropriate tax returns; and 

• Distribute remaining assets according to the will’s terms or if intestate, according to state laws, after the foregoing is complete and the seven-month period has elapsed.
  

5. Accounting of Estate Assets

It’s good practice for an executor or administrator to prepare an informal accounting of estate assets. Sometimes a formal accounting is required by the Surrogate's court. An accounting is a way to show that estate assets were properly marshalled, debts were paid, and what remains to be distributed.  An accounting can be requested by creditors or beneficiaries. Information contained in the accounting includes: 

• Assets and debts at decedent’s date of death;

• Income produced by estate assets (i.e. dividends and interest, rent income); 

• Loss in value of assets from date of date; 

• Payments of specified bequests, expenses and debts paid post-death;

• Calculation of commissions; and 

• Assets remaining to be distributed per the terms of the will.  

Beneficiaries have the opportunity to review and approve the accounting before the estate can be finalized and closed with the surrogate’s court.  

6. Distribute Remaining Assets  

Once assets are accounted for, expenses and debts are paid and an accounting report (if applicable) is approved, beneficiaries are notified of their distribution from the estate.  They approve and sign a release and receipt form which confirms they do not dispute their inheritance and that they release the executor or administrator of liability.

7. Close the Estate  

Once all receipt and release forms are signed and returned by the remaining beneficiaries, the executor or administrator distributes the remaining money to the beneficiaries according to the terms of the will and/or the accounting report.  Once the remaining assets are distributed a closing report is filed with the surrogate’s court confirming that all steps in the estate administration process have been properly completed. 

In the alternative, the executor or administrator may petition the court for judicial settlement of account. 

Common Probate Myths  

Myth 1: Probate Should Be Avoided at All Costs  

Jointly owned property, life insurance, annuities, and retirement accounts with named beneficiaries all avoid probate. Also, some states allow you to name beneficiaries on bank accounts, which would also avoid probate. However, probate isn’t necessarily a bad thing! In fact, it gives legitimacy to the will, allows for the appointment of a guardian of a minor or authorizes the creation of a trust for a beneficiary. Probate proceedings also limit the time period for creditors to make claims against an estate.

Myth 2: Probate is Always Lengthy and Expensive  

While probate costs money, avoiding probate may be more costly. Probate tends to be less expensive than people expect. If you establish a Trust, you pay prior to your death. If you do not set up a Trust, you pay posthumously for estate administration. Trusts may be distributed without judicial oversight, but liability of fiduciaries may remain longer.

Myth 3: Having a Last Will Eliminates the Need for Probate  

A will must be admitted to probate (validated) in order to be given effect. 

Planning Ahead to Simplify Probate  

The best way to ease the probate process is through strategic estate planning. Planning ahead can minimize the burden on your loved ones and reduce the likelihood of disputes. Some options to avoid or probate or to simplify the process include:

• Create a will: Ensure your wishes are clear and legally binding.

• Set up a trust: Assets held in Trusts bypass the probate process, offering greater privacy and efficiency.

• Name beneficiaries: When appropriate, designate beneficiaries for financial accounts and life insurance policies to avoid probate for those assets. 

• Joint Owners: When appropriate, add a joint owner to your bank account or investment account.   

• Regularly update your estate plan: Life changes, such as marriage, divorce, or changes to assets, require updates to prevent issues.

Of course, each situation is different and you should speak with your attorney before implementing any of these tools to make certain you understand the advantages and disadvantages of these options.

The Power of Estate Planning

Estate planning is one of the best ways to make the probate process easier for your loved ones. By preparing ahead of time, you can create a clear plan for handling your assets, minimizing confusion or delays. 

Working with an experienced legal professional can ensure everything is set up correctly, from naming an executor to specifying how your assets should be distributed. Preparation today can bring peace of mind to those you care about most!