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A: What your Executor can expect will depend on your existing estate plan and how your various assets are titled.
Assets that are titled in your sole name that do not have a designated beneficiary will pass according to the terms of your Last Will and Testament. These assets are considered part of your “probate estate” which means that your Executor will first have to go through the probate legal procedure before the assets can be distributed to the named beneficiaries. The nominated Executor must file a probate petition with the Surrogate’s Court to be officially appointed by the Court and to be able to distribute the property left by the decedent. First, the Executor will file the original Will and a certified copy of the death certificate along with the probate petition in Surrogate’s Court. Then, notice needs to be given to the decedent’s next-of-kin who will either sign waivers and consents or be issued a citation to appear in court with the opportunity to object to the Will.
If everyone consents to the Will admitted, with no objections, then jurisdiction is said to be complete, and the Surrogate’s Court will issue a decree granting probate and Letters Testamentary will be issued to the Executor. At this point, the Executor has the authority to marshal the decedent’s assets, pay any debts of the decedent, and distribute the property in the estate according to the terms of the Will. Interested parties are called “distributees.” Distributees are individuals that would have inherited the decedent’s assets if the decedent had died without a Will and with no named beneficiaries.
If everyone does not consent to the Will being admitted to probate, the length and costs of probate likely multiply exponentially. Any distributee has the right to examine the Will and other documents and then take depositions of the drafting attorney and all witnesses to the Will execution. The cost of these depositions is expensive and are paid for by the estate. After the examination, the distributee has 10 days to file objections to the Will. If objections are filed in court, the litigation could be protracted and costly.
It is usually advisable for the Executor to hire an attorney to help them through the probate process as it can be highly technical and complicated, from the various documentation that needs to be provided to the challenging legal procedures involved. Moreover, transferring ownership of more complicated assets such as businesses or commercial real estate is far from straight-forward, not to mention the proceedings that follow if the Will is contested.
Assets that are jointly owned or have designated beneficiaries will automatically pass to the designated beneficiaries upon your death, avoiding probate. Examples include jointly owned bank accounts, retirement and investment accounts, and life insurance (again, to the extent you have named beneficiaries on these accounts). Real estate that is jointly owned with a right of survivorship will similarly pass automatically to the living joint owners without having to go through probate.
However, avoiding probate is more complicated than just naming beneficiaries on accounts. A living trust is often a preferable way to avoid probate. Assets titled in a living trust will simply pass according to the terms of the trust, free from probate. The trust document will name a trustee during your life and a successor trustee for after your death who will take over management of the trust property upon your death and no court proceedings will be necessary. Furthermore, by utilizing a trust, you can provide for minor and disabled beneficiaries by having their assets transfer in further trust. Likewise, you can protect all your beneficiaries from divorcing spouses, estate tax, long term care costs and judgment creditors.
An experienced elder care/estate planning attorney can help you form an estate plan that effectively avoids probate, saving your Executor (and beneficiaries) a lot of time, money, and stress down the road.
Nancy Burner, Esq. and Britt Burner, Esq. are partners at Burner Prudenti Law, P.C. focusing their practice areas on Estate Planning, Elder Law and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.