New York Probate Process
Simply defined, probate is the process of legally establishing the validity of a will before a judicial authority. However, each state has different rules which must be followed in order to validate a will. So, how does the probate process work in New York? To answer that question, we asked a New York attorney whose practice focuses in this area of law.
NY Attorney Elliot Schlissel
In a recent interview, Elliot Schlissel, a New York attorney for over 30 years whose practice focuses on estate planning and several other areas of the law, told us that contrary to what many believe, the probate process in New York is not that difficult. He explained:
There are some states like Florida and California where it is extremely burdensome. That’s not so in New York. The probate process is the process whereby a will is accepted by the court. To do that, documents have to be filled out putting the case on the court’s calendar. Next of kin or people who were related to the decedent are given notice and a day is given to come to court. On that date, anyone who feels the will is invalid or that they were not treated fairly under it can make a presentation to the court.
Schlissel says that the probate process in New York generally takes between one to three months to go through the court system, although he cautioned that it could take much longer if it is challenged – which happens frequently.
Why would a will be challenged?
For a variety of reasons, according to Schlissel, who, after 30 years of estate planning, has seen it all. He explained:
Wills are challenged because the person writing the will did not have testamentary capacity. They suffered from things like Alzheimer’s or dementia and they weren’t really capable of executing a will. It’s sometimes challenged because of undue influence; a child, a loved one or neighbor taking advantage of a senior who’s in a frail state of mind or frail physically. It’s sometimes challenged because the document is just not technically correct or it wasn’t executed with the appropriate testamentary formalities. They’re also challenged for fraud, duress or someone being defrauded into writing a will.
To view a video on this subject, click here.
New York Estate Taxes
We asked Schlissel whether there are any differences between probating small and large estates. His answer was a resounding YES! He explained:
There are significant differences between probating small and large estates. New York State has an inheritance tax and there are federal inheritance taxes that are paid on large estates. The more property and money that are involved make the administration that more difficult. In New York State, you pay over $1 million. The federal is on a sliding scale and it’s much higher than that. However, that’s going to be changing in 2009, so the new administration will have an impact on the federal estate tax.
New York estate administration challenges
Schlissel told us that estate administration in New York can be challenging as it is an area that most people aren’t familiar with. He explained, “Executors sometimes don’t realize that the will has to be probated through a court, that it is not a self acting document. It has to be accepted by the court first. Executors can be challenged as well if they’re dishonest people or have criminal convictions – even if they’re specifically named in the will. The probate process also requires that certain events have to occur before money can be distributed from a probate action. Funeral bills would have to be paid, administrative expenses would have to be paid and creditors would have to be paid before money is paid to beneficiaries” – which is why he says that it’s your best bet is to consult an attorney who does estate planning work.
For estate planning needs such as wills, trusts, healthcare proxies, powers of attorney or probate matters, contact an experienced New York probate attorney to discuss you situation and evaluate your options. Consultations are free, without obligation and strictly confidential.