Probate is the legal process by which a court confirms a deceased person's will and oversees the distribution of their assets, which can take anywhere from six months to more than two years in New York. Because of the time, money, and privacy issues involved, it's wise to plan ahead for an estate that avoids Probate whenever possible.
New York Probate Procedure Steps
- Submit a will: Filing a will with the Surrogate's Court after death
- Notify heirs: Notify all legal heirs of probate proceedings
- Validate wills: For courts to examine the validity of a will (witness identification, etc.)
- Appoint an executor: Court issues Letters Testamentary to Executor
- Build an asset listIdentify all of the decedent's assets and debts
- Debt consolidationSettling unpaid taxes, debts, and expenses
- Asset allocation: Distribute assets to heirs in a will
- Final reportingClose after filing a settlement report with the court
Probate costs
- Court fees: $45 to $1,250 depending on asset size
- Attorney fees: 2-5% of assets or billing by the hour
- Executor fees: Set percentages by asset size per New York law
- Other: appraisal costs, accounting costs, announcement costs
For example, an estate valued at $1TP500,000 could have total probate costs ranging from $$15,000 to $$25,000.
How to avoid probate
1. Living Trust
This is the most effective way. Assets transferred to a trust are not subject to probate. Upon death, the assets can be distributed by the successor trustee.
2. Joint Ownership
If you own real estate or a bank account in joint names with your spouse (Joint Tenancy with Right of Survivorship), it will automatically transfer to your survivor upon your death.
3. Beneficiary Designation
You can designate beneficiaries on life insurance policies, retirement accounts (401k, IRA), and bank accounts (POD/TOD) and they will go directly to you without probate.
Frequently asked questions
Q. If I don't have a will, don't I need a probate?
Quite the opposite. Without a will, an “administration” proceeding is required, where the court appoints an administrator and distributes assets according to New York intestate succession law. This is more time-consuming and expensive.
Q. If I have a small estate, do I not have to go through probate?
In New York, if your personal property is $50,000 or less, you can handle it with a Small Estate Affidavit (simplified process). However, if real estate is involved, a Probate is required regardless of the amount.
How to pass on assets without the burden of probate, if you plan ahead. For an estate planning consultation, contact the Law Offices of Jin Dong Cho.
Phone: (718) 353-2699 | Email: jd@choattorneys.com
