Most people avoid talking about the probate process—how a person’s affairs are wrapped up after they pass away. However, understanding it is essential for anyone who wants to make sure their final wishes are carried out and spare their loved ones from undue stress! 

What is Probate?

A probate proceeding is the legal process that takes place after someone’s death, to validate a Last Will and Testament (“will”). Even if there isn’t a valid will, an administration proceeding through Surrogate’s Court might still be necessary if the decedent died owning assets in their individual name, without a named beneficiary. Either preceding is important to ensure the lawful and orderly distribution of a person’s assets following their passing.

Here are a few key terms to know:

  • Testate: A person has died “testate” if they have a valid will.  
  • Testator: The person who has made will.
  • Intestate: A person has died “intestate” if they don’t have a valid will.
  • Executor: The person or institution named in the will to marshal assets, pay debts and distribute the estate according to the Testator’s wishes. 
  • Administrator: The person appointed by the court to manage the estate if there is no will or if the executor is unable or unwilling to serve.

In New York, Surrogate’s Court handles estate administration. In other jurisdictions, these specialized courts may be referred to as “Probate Court”.

People often associate probate administration with lengthy legal battles and substantial paperwork. While the law does require an estate proceeding to remain open for a period of time, probating a will is supposed to make it easier for the executor to manage a person’s estate in an orderly fashion and to designate who will inherit the balance of your estate. Wills can also be used to protect beneficiaries and from claims of creditors.

The Role of Estate Planning in the Administration Process

Estate planning can be seen as your final to-do list; a way of telling your loved ones that you care about their well-being even after you’re gone. In addition to drafting a will, estate planning also encompasses a plan including a power of attorney and a health care proxy to manage an individual’s finances and health-care in the event of incapacity during their life. 

This comprehensive plan is necessary for the management and transfer of your assets by people you choose, in the most practical and tax-effective way.

When you are proactive with your estate planning, you can effectively provide a clear map for your loved ones to follow. You’re also able to designate who has authority to assist you with financial and health-care management during life, as well as who will inherit your assets post death. You are also able to name a guardian for minor children; and set up trust for minors or people who are unable to manage their financial affairs.

The Importance of Legal Counsel

Estate planning must be taken seriously and done in collaboration with a legal professional. We help our clients consider their unique circumstances, relationships, and explore potential issues that might arise. For instance, is a trust for a beneficiary advisable? How best to distribute assets equitably, which may not always be equally? Who should be named as an executor, guardian or trustee? An experienced estate planning attorney will tailor your plan to ensure your wishes are considered and accurately set forth in your estate plan. 

Every family has dysfunction, they just vary in degrees. It’s not uncommon for long standing family issues to flare up upon the passing of a loved one. Emotions often run high, and disputes arise if family members feel treated unfairly or unequally. This disharmony often leads to disputes, will contests or delays in estate administration.  

This is why one of the most crucial aspects of estate preparation is the clear, comprehensive and written communication of your wishes. Leaving behind a vague or confusing will allows family members to interpret your intentions in a way that might conflict with their own interests or with each other. Working with a legal professional helps ensure your final wishes are clear and carried out. 

The Implications of Not Having a Plan

If you do not have a written estate plan, the laws of the state you reside in becomes your plan. 

Laws of intestacy vary from state to state, but generally, they dictate that your assets pass to your closest living relatives in a predetermined order. This plan may or may not align with your wishes or be in the best interest of your loved ones.

When there is no will or estate plan, the probate process can become more complicated and time-consuming. Legal costs can mount as the process is prolonged, and immediate financial access for your dependents can be blocked. Without a designated executor or administrator, the court will appoint someone to handle your affairs, who may not be someone you would have chosen.

Planning is Key

By understanding the estate administration process, taking proactive steps through estate planning, and seeking competent legal counsel, you can rest assured that your finances are managed appropriately during your life and your assets are distributed according to your wishes post death. Proper planning will spare your loved ones unnecessary stress. 

Remember: with proper planning, estate administration probate can be a straight-forward, manageable process! A written plan is the greatest expression of love and consideration you can leave behind for your family. Now is the perfect time to take charge of your affairs and  engage in this important process. By doing so, you are securing peace of mind for yourself and for those who matter most to you.