When a loved one or relative passes away in New York, their estate must be managed and distributed according to their wishes stated in their Will. As difficult as it may be, it’s advised not to put the person’s final wishes on hold until the grieving process is over but should be handled promptly. The estate will need to be brought before the court in what is known as the probate process, and New York has requirements on how probate is to be handled.
Going through probate in New York can be confusing for anyone not familiar with the process. So it would be helpful for those involved with the estate to have a basic understanding of what all this entails. This complete guide to probate will help answer your questions so that you’ll be ready to navigate the New York probate process like a pro.
How Much Does an Estate Have to Be Worth to go to Probate?
Often this question gets asked, “how much does an estate have to be worth to go through probate?” Unless there is a living trust, a surviving spouse, or if assets are owned jointly, most estates, no matter how much their worth, will need to go through New York probate. But this is also dependent on the size of the estate.
Smaller estates may have the option of small estate administration, which is similar to probate, but the court doesn’t need to have oversight for every step of the process, making it go quicker. The estate must be valued at less than $50,000 to qualify, and any assets that automatically go to the beneficiaries aren’t included in that evaluation.
So before assuming you fall into the small estate administration category, you’ll want to verify the estate’s value or seek legal advice to confirm the assessment. Since you still may need to file something with the probate court to get permission to proceed, having a legal representative would help.
Removing Items Before Probate
A general rule of thumb, if the house is a part of the probate, you shouldn’t take anything out of it. Usually, probate needs to be completed before you can remove any items. So if you were hoping to tackle cleaning out a hoarder house to get it ready to sell you’ll need to wait. However, when a house is deeded to a surviving heir, it may not have to be included with probate assets. If this is the case, you would be able to freely take anything out of the house and dispose of the contents the way you see fit.
Related Article: Why You Need a Digital Estate Plan to Transfer Digital Assets Upon Death
Suppose it wasn’t deeded to anyone, and you’re the executor of the estate or personal representative. In that case, you may need to take inventory of the property’s contents as part of recording the estate’s assets. The executor may need to sell the home to pay any outstanding debts. At this point, or once probate is settled, you would be able to gather the items, have an estate sale or divide them amongst the relatives.
To be safe, always check with your lawyer who is handling your probate case to confirm you have the authority to remove items before you do.
What are the New York Probate Laws?
Firstly, New York laws require most estates to go through probate. The process is meant to help transfer assets to the heirs, and the state provides guidance and requirements on how to do this properly. So once a person dies, New York law requires that the Will is presented and filed with the Surrogate’s Court in the county where the person lived.
Although New York probate laws don’t have a specific time frame for this to be done, they request that it be done in a timely manner. New York has its own laws that govern particular timelines and what forms will be used throughout the probate process. Unless you feel confident you can handle this matter on your own, it’s helpful to have a knowledgeable lawyer manage the probate process since they are well versed in New York law.
New York Probate Process
If you’re involved with an estate, it is important to know what the probate process looks like. Below is some basic information about the steps involved in going through the probate process in NY.
Steps in the New York Probate Process:
Step 1: File the original Will, death certificate, and a petition for probate with the court in the county where the deceased lived.
Step 2: The court will appoint an executor or personal representative to act on behalf of the estate. They will provide documents showing the person has the authority to take action.
Step 3: The executor will notify heirs and creditors of probate. Creditors may submit claims against the estate during this time.
Step 4: The executor takes inventory of all assets and ensures they are secure until probate is completed. During this time, they may need to have some assets appraised too.
Step 5: The final tax return must be filed, and any owed taxes must be paid.
Step 6: The estate will be distributed with the remaining assets being dispersed as outlined in the Will or by NY law if no Will exists.
To complete probate, these main steps must be followed. If you’re unsure what to do, you can have an estate attorney help you through the process.
→ Find out more about What to Expect in New York Probate by clicking here.
Finding the Right Probate Lawyer
New York laws don’t require you to hire a lawyer to take care of a probate proceeding on your behalf. If you feel comfortable handling the process, simple probate should be manageable.
That doesn’t go without saying that most probate matters are challenging, and you’d be better served by having an experienced probate lawyer handle your case. Finding the right probate lawyer will involve interviewing a few candidates. However, you’ll want to make sure you tell them upfront that you’re talking to several lawyers before you hire one to handle the estate.
Helpful Questions to Ask When Searching for the Right Probate Lawyer
Before you get into more specific details of the probate court proceeding you’ll want to ask some general questions before hiring a probate lawyer. Below are some helpful questions to ask:
- How many New York probate cases have you handled?
- Do you charge by a flat rate, by the hour, or some other way?
- Could legal assistants in your firm do some of the work at a lower hourly rate?
- Would it be ok to handle some of the probate work myself to keep fees down?
- Would you prepare the final tax returns for the estate?
- How long will it take to go through probate? Rough estimate?
- How much does this typically cost?
Large Estates and Taxes
If you’re handling a substantial estate—worth millions—you may need to think about federal estate taxes and state taxes. If state or federal estate tax returns need to be filed, you want to be sure you’re hiring someone with particular expertise in this area. It would help if you asked specific questions, including:
- If federal estate tax or state tax returns are required, will you prepare them?
- How many estate tax returns have you prepared?
Related Article: Taxes on Selling a House in New York: What are the Taxes to Sell My Home?
How to Choose the Right Probate Lawyer
Ultimately, you want to work with a lawyer that communicates clearly and respects your efforts to educate yourself if you prefer to do some of the work on your own to save on fees. Since you’ll be consulting this lawyer on legal and financial matters, as well as personal ones, you want to find someone you feel comfortable working with.
Probate Codes
What are probate codes, and does NY have them? Probate codes are a set of laws designed to streamline probate. Currently, 18 states have adopted the Uniform Probate Code (UPC), a set of rules written by national experts to make the probate process simpler while giving executors more flexibility. As of right now, New York has not adopted the UPC. But they do follow these probate statutes, found in The Laws of New York, Consolidated Laws.
Probate Court and Documentation
Going to probate court and dealing with filing the correct documents can be overwhelming. One missed form or error may prolong the process. As it is, the New York Surrogate’s Courts has specific documents that require detailed information that must be filed in probate. As tedious as this sounds, all of this information assists the court in determining the help that is being requested, such as the probate of a Will or the settlement of an Executor’s account.
If you were to hire a lawyer, they would be able to handle the ins and outs of the probate court and know what documentation you’ll need to file. If you’re managing the probate process on your own, you’ll need to be ready to file the correct paperwork and have records handy regarding the estate if requested by the court.
Also, if you intend to sell the residence associated with the estate, you’ll need to know what documents are required to sell a house in probate.
How Long Does Probate Take?
This is always a burning question for most people, “how long does probate take?” An average probate case in New York generally takes about a year to complete.
The New York probate process usually consists of these three stages:
Stage 1: Appoint the executor- 3 months
Stage 2: Settlement of the property- 6 months
Stage 3: Closing the estate- 3 months
Total: about 12 months
Each stage has its typical tasks and routine delays, but you can expect major delays in the process if the Will is contested. The good news is significant delays are less common, but they can have a considerable impact on how long the probate case will take and how much it will cost.
What if the Executor Does Not Probate the Will?
Certain states have specific timeframes that a Will needs to be probated, but in New York, this is a bit of a gray area. The executor is expected to do this sooner rather than later, but there isn’t a clear definition of what that timeframe looks like.
So what happens if the executor does not probate the Will? Ultimately, if the named executor fails to file the Will, they can be held personally liable for losses that should’ve been avoided, such as investment losses or theft of assets. Furthermore, titled assets will remain in limbo with cloudy titles until the estate is probated. So if you’re the heir to an estate and the executor doesn’t file the Will with the court promptly, you may be able to petition the court to be named as administrator of the estate.
Understanding Probate Costs
Going through probate isn’t a free process, especially if you hire an estate lawyer to represent you. For a simple estate, it can cost about $4,000 to go through probate. For an estate with routine complications, New York probate can cost about $8,000. And if the estate has significant difficulties (for example, a contested Will or searching for unknown parties), well, then you’re looking at tens of thousands of dollars. The extra time and resources used when there are significant complications increase how much probate costs.
Who Pays All These Fees?
Usually, the executor advances payments on behalf of the estate for service costs, filing fees, and other necessary expenses and is then reimbursed once the estate is settled. Fortunately, the executor also gets compensation for their time which may include the cost of travel to where an asset is located or hiring an appraiser or accountant to help with the estate.
Is it Easy to Sell a House in Probate in New York?
Selling a house in probate is an entirely different process than a standard real estate sale. It can be a time-consuming and overwhelming task, but it’s certainly possible. With a bit of help from a real estate expert and a thorough understanding of the probate process, you’ll be able to sell a house in probate easily. Because there are several benefits of selling a house in probate, it’s definitely worth looking into instead of holding on to an inherited property you’ll have to maintain.
Related Article: Myths About Selling a House in Probate Busted. [THINGS YOU SHOULD KNOW]
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Final Takeaways
Unless you’re a lawyer yourself, navigating probate in New York can be confusing, which is why it’s important to seek legal advice or hire a lawyer to handle the process. The same could be said when it comes to selling a house in probate. Working with a real estate professional that understands what you and your family are going through would be extremely beneficial. Since selling a home in probate is a unique situation that most buyers don’t understand- working with a buyer like Leave The Key Homebuyers, who knows the process, can make a big difference.
Hopefully, you found this complete guide to probate in New York helpful, however, the material and information in this article are for general information purposes only. You should not rely upon the material or information within this article as a basis for making any business, legal or financial decisions. Be advised to seek the advice of a New York estate attorney regarding your probate situation if you have any questions or want to learn more about New York probate laws.