Understanding Probate: What It Is, How to Avoid It, and Why You Should

Probate refers to the legal process through which a deceased individual’s assets are distributed in court. During this process, if the deceased individual (also called a decedent) did not have an estate plan, the court will make the determination as to who receives what assets. This can often lead to conflict between family members who feel that they should receive certain assets.

What Happens During the Probate Process?

During the probate process, the Surrogate’s Court will appoint an executor. This executor is tasked with collecting information regarding the deceased individual’s assets, as well as income and debt. The executor must first pay off any existing debt and/or expenses before dispersing assets to the appropriate individuals named in the decedent’s will.

However, this process can become quite complicated if the decedent died without having a will. When this is the case, it can often lead to the conflict between family members mentioned above.

How Can You Avoid the Probate Process?

Fortunately, there are some important steps that you can take to avoid having your loved ones go through the probate process. It is important to note that these steps must be taken before you pass away.

Avoiding Probate: Living Trusts

One way in which you can avoid the probate process is by creating a living trust. The purpose of a living trust is to protect your assets and to determine to whom the assets should be distributed to upon your death.

The individual who creates the living trust (the grantor) names a trusted individual who will carry out the terms of the trust upon the grantor’s death (the trustee). The grantor has the ability to name themselves as the initial trustee for the purposes of controlling the relevant assets until their death, at which point the trustee will take control and distribute the assets to the appropriate parties.

By creating a living trust, you can legally designate whom you would like to receive what assets following your death, as well as the individual who will be responsible for making sure those assets are properly distributed. Therefore, creating a living trust is one way in which you can avoid the probate process.

Avoiding Probate: Designating Your Beneficiaries

Certain assets also allow for you to avoid the probate process. For example, in New York, you can add a payable upon death designation to a bank account. In addition, assets such as stocks, bonds and other securities allow for a transfer upon death designation, therefore avoiding the probate process.

Avoiding Probate: Co-Ownership of Property

Co-owned property is also not subject to the probate process. For example, property jointly owned by a married couple can be passed down to the surviving owner when one passes away.

Why You Should Avoid the Probate Process

Quite simply, avoiding the probate process will help your loved ones avoid a potentially hostile scenario regarding the distribution of your assets following your death. In addition, if your assets do go through the probate process, it can drag on and become quite lengthy.

The process can become particularly lengthy if the will of the decedent is brought into question.

Why Would a Will Be Contested in Court?

There are several reasons a will may be contested in court. These include the following:

  • The will was not properly executed
  • The decedent was improperly pressured or tricked into naming a certain beneficiary
  • The will was revoked or a new one was created by the testator prior to his or her death
  • The testator did not have the mental capacity to understand the terms of the will when drafted

While the probate process may seem hectic, there is no need to stress. Our experienced team of estate planning attorneys can help you with your case. Contact us today to learn more about how we can assist you.

For more information about various estate planning topics, view our previous blog posts.

Image by Mohamed Hassan from Pixabay

About the Author

Alyssa Marie Monteleon, Esq.

Alyssa Marie Monteleon is an elder law and estate planning attorney at the Monteleon Law Group, PLLC with offices in New York and Virginia. For more information, please visit www.monteleonlaw.com or call (914) 840-2529.

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