People choose to plan their legacy to avoid the probate process for many reasons. However, the two main reasons to avoid the probate process are time and money. In addition, if you are in New York, the backlog of probate cases means your loved ones could be subject to a delayed inheritance for almost a year, and if you have property in other states, your loved ones will have to go through probate in more than one state.
The time it takes to probate a will is determined by how soon clients and third parties produce relevant information. An application for probate or administration can typically be submitted in a couple of weeks, but the application is subject to the court’s timeline once submitted. The Will is admitted to probate, and the person named therein will be appointed as Executor if no one objects to the Will and the Surrogate determines that it is valid.
The volume of cases handled by New York City courts lengthens processing times. Depending on the county, a simple probate or administration petition may often not be granted for months. Additional delays are brought on by specific problems, such as real estate or business ownership by the estate, finding an heir, or having trouble getting a death certificate, marriage certificate, or asset information. If a dispute occurs between any party in the probate process, it can last much longer.
According to New York law, all beneficiaries and fiduciaries included in a will must be informed that the will is being put through the probate process, as well as all the decedent’s distributes, i.e., next of kin, whether they are named on the will or not.
In addition, anyone who will be negatively impacted by the probate proceeding is given an opportunity to show up in court and have their objections to the probate heard. In a better case scenario, this person will sign a waiver confirming their permission to move forward with probate. While it is not often that someone opposes a will in this way, it is a possibility and has the potential to significantly slow down the probate process.
Fortunately, there are other options that may work for you and your family while still accomplishing your estate planning objectives.
Named Beneficiaries in Testamentary Substitutes
When thinking about the transfer of property after death, many think immediately of the last will and testament. However, did you know that certain accounts immediately transfer to your beneficiary upon your death? Probate can be avoided in such a way by utilizing “testamentary substitutes” such as retirement, life insurance policies, transfer-upon-death accounts, and jointly-owned accounts. If there are multiple beneficiaries, the account owner often specifies a percentage by which he or she wishes the asset to be distributed among the beneficiaries (i.e., equal percentage to all or different percentages to each beneficiary).
Utilizing A Trust to Avoid the Court System
Certain transfers, such as those made by operation of law, do not require direct judicial oversight. Moreover, you can avoid the system by establishing and funding a trust throughout your lifetime. The trust document functions similarly to a will in that you can name a person to handle your estate (called a trustee) and specify the exact terms for asset distribution. Trust documents, in most cases, do not need to be filed with the court and do not have many of the notice requirements of probate, reducing further delay and expenses. The trustee will have instant authority over your assets upon your death, and will be subject to the parameters you set regarding how trust assets are handled. Furthermore, if all assets, including assets from another state, are placed in your trust, you will eliminate the need for ancillary probate.
Estate Planning Attorneys Serving New York, New Jersey, and Florida
If you want to avoid probate, contact Beress & Zalkind PLLC right away. Estate planning is complicated, but our knowledgeable estate planning attorneys have extensive experience assisting clients just like you. We are well-versed in estate probate laws and how to avoid the probate process. We are here to help if you have questions about how to plan for or manage probate while in it. We proudly serve clients in New York, New Jersey, and Florida.