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Many people are aware of wills, but what is the process behind getting the affairs of the deceased sorted? This article aims to provide insight on that process – called probate – and what the probate process is like in New York state. So what is probate? It refers to the legal process where a deceased person’s estate is resolved. This process is headed by someone called an executor and is overseen by the court, with the court being responsible for validating an existing will and the administration of the estate. There are two overarching situations when it comes to probate:

• The deceased died without a will – Referred to as dying intestate, the estate will be subject to New York’s intestate laws
• The deceased died with a will – An executor is appointed to gather the estate, pay off debts, and distribute the remainder of the assets per the will’s instructions

While the probate process can seem complicated and daunting, New York makes following the process straightforward and transparent. This article will walk through the basics of the probate process in New York, what to expect, and things to consider and look out for.

Intestacy, Or Dying Without a Will

If a person dies without a will or other estate plan, this person has essentially passed away without leaving any instructions to follow regarding how they wish to distribute their estate. If this happens, the court has a predetermined process on how to distribute the estate. New York is very clear on who receives what portion of the estate based on their relationship to the deceased.

The following is a chart that outlines how the distribution works in New York:

Surviving family members	Who inherits the estate
Children but no spouse	The children get everything
A spouse but no children	The spouse gets everything
Spouse and children	The spouse gets the first $50,000, and half the balance while the children get everything else
Parents but no spouse and no children	The parents get everything
Siblings but no spouse, no children, and no parents	The siblings get everything
Grandchildren but no surviving children	The grandchildren get everything

Specifically regarding children, adopted children and unborn children are treated like biological children under New York state law. Additionally, foster children and stepchildren cannot inherit unless they were legally adopted by the deceased. Children born outside the marriage will inherit from the father if paternity is legally established. All children under the above categories fall under the status of “children” in the above chart. Finally, if someone dies without any family at all, their property will go to New York State.

While there is a system in place for when someone dies intestate, it is highly recommended that a will be created to avoid this process altogether. While it is relatively easy to divide up cash, physical assets like property and personal belongings are much harder to distribute in an equitable way. It is not only entirely possible, but fairly commonplace that the assets of the deceased are split in a way they would not prefer.

Constructing a will allows someone to decide exactly how they want their estate to be administered after they die. Anyone considering the creation of a will for themselves should reach out to an experienced estate attorney who can guide them through developing an effective, preferable estate plan.

Dying With a Will

If someone dies with a will, they will have an estate plan in place, making things much easier on the family and the courts when it comes to dealing with the estate. The will should name an executor, or the person responsible for carrying out the instructions contained in the will.

Once a person dies, their will must be validated by the court in the county where the person lived. Along with the will, a death certificate and petition for probate will also need to be submitted to the court. If the will is valid, the court will then appoint the executor. This is typically the person designated the role in the will, but in the rare event the court finds that person unfit to take on the responsibility, the court will appoint someone.

The executor has the following core responsibilities:

• Pay off outstanding debts of the deceased
• Pay any funeral and last expenses
• Create any necessary trusts for certain beneficiaries named in the will
• Take inventory of assets, including appraising assets that need to be appraised
• Notify heirs and creditors of the probate proceedings
• Distribute the assets in the will

Obviously, these are some hefty responsibilities. In many cases, executors will need to facilitate selling the deceased’s home to split the value in a fair way among the inheriting beneficiaries. This requires getting the home cleaned and cleared out, perhaps hosting an estate sale, hiring a realtor and separate attorney, etc. It’s a lot of work being an executor!

To compensate for the effort, New York has passed laws entitling an executor to a commission based on the size of the estate. The commission rate in New York for each executor is:

• 5% on the first $100,000 in the estate
• 4% on the next $200,000
• 3% on the next $700,000
• 2.5% on the next $4,000,000; and
• 2% on the remaining amount over $5,000,000

While the executor is entitled to commission or other payment outlined in the will, they can refuse any payment. Often, this happens when the executor is someone who is close to the deceased and is included in the will to avoid issues among the other beneficiaries.

If you’re looking to assign an executor, or have recently been named an executor, it is recommended that you speak with an experienced estate attorney. The attorney will help address any questions or concerns you may have ahead of time, and will help an executor with administering the estate in a quick, efficient, and painless way.

Avoiding Probate

Probate is an often costly process, financially, emotionally, and in regards to time. Many people desire to avoid the process altogether, and luckily, this is possible in New York. Whether it’s to avoid delays in administering the estate, complaints about the public nature of the probate process, or the costs associated with probate, there are ways to avoid it.

If there is a will containing assets worth less than $50,000, probate is not necessary. Rather than proceed with lengthy probate, inheritors will simply need to submit an affidavit to the court to collect their share of the inheritance. However, the most common way to avoid probate is by creating a revocable living trust designed to hold the estate and assets. A living trust allows a person to instruct how they want their assets to be distributed up until their death by putting them in a separate entity along with specific instructions.

However, it is important to note that anything not explicitly listed in the living trust will be subject to probate, so it is important to be as comprehensive as possible. It is possible to create something called a “pour-over” will, which is a last will and testament that includes instructions for any part of the deceased’s estate not included within the living trust. For example, this may be needed if a person purchases a new home in their own name and dies before they can retitle it in the name of the trust.

A living trust might not be the best choice for everyone, though. New York has worked to make the probate process as cost and time-efficient as possible, and it might be worthwhile to pursue probate as a viable option. It’s best to speak with an estate attorney to figure out what estate plan is best for you.

Should I Hire an Attorney?

Estate planning can sometimes feel overwhelming, especially when someone is dealing with the probate process while having to manage the stress of a recently deceased relative. Whether you are considering your own estate plan or dealing with the estate plan of someone else, it’s always best to consult with an experienced attorney before making any decisions.

At Rosenblum Law, our attorneys will speak with you to gain an understanding of your situation and present you with options for the best path forward. Call us today to get started with a free, initial consultation.