9 Common Probate Questions

As a NYC Estate and Probate attorney, I find myself stopped and asked questions not just by individuals but other attorneys as well regarding the various facets of the probate process. I would like to take this opportunity to answer some of the many questions I come across in order to help the public understand this area of law a little better. 

To really sum it up, what exactly is probate?
When a person has a will, that will essentially needs to be verified by the court (Surrogate’s Court to be exact). Probate is another name for this verification process.

Do wills avoid the process of probate?
Absolutely not. A trust can avoid going through probate. As mentioned above, a will HAS to be verified by Surrogate’s Court. 

Do I need to start probate immediately after one’s death?
There is no actual time limit to probate a will. There have been instances where a will was probated decades after an individual passed away. 

How long is the probate process?
When a person passes away, they leave many things behind such as assets and debt. From the moment a petition is filed, creditors are given the opportunity to make a claim on the estate to be compensated for that which is due to them. They are given seven months to recoup the amount owed. Therefore, the probate process takes at least 7 months but be mindful it can last several years. 

How much will probate cost?
Filing with Surrogate’s Court can go as high as $1250 depending on the dollar amount of assets within the estate. Be aware there are also attorney fees. An attorney can charge you in several different ways be it hourly, a flat fee, or a percentage of the estate once everything is resolved.

Once probate begins, can the will be challenged?
Not only can the will be contested/challenged, but the appointment of the executor can also be questioned and challenged. There are a number of reasons why a contest is typically made:

Undue Influence: This occurs when the individual writing the will is influenced by another party for either their benefit or someone else’s benefit.

Lack of Testamentary Capacity: The individual writing the will did not have the mental ability required to create the will.

Fraud/Forgery: The individual writing the will wrote the will under the guise of fraud. Also, the testator’s signature was forged.

Undue Execution: Per EPTL 3-2.1, a will has be executed through various requirements. If a will is not properly executed, a challenge is possible.

Revocation: Information was presented where the current will has been revoked due to an updated version.

When hiring an estate lawyer, would I still need to go to court?
For the most part, your probate/estate lawyer will not require your presence at Surrogate’s Court. Many probate proceedings do not require much court time.

Would I have to pay estate taxes?
Be mindful there are various exemptions when it comes to estate taxes and most individuals in this country do not qualify to pay this particular tax. If you happen to be the select few with an amount due in estate taxes, they will be due to the IRS within nine months of the decedent’s death. As with normal income taxes (1040), the final filing will be due on 4/15/xx.

What will happen to my accounts that already have a beneficiary in place?
The accounts in question are your bank accounts, life insurance policies, IRAs, 401(k)s, and all other investment accounts. Fortunately, they avoid the probate process. What needs to happen is as follows: the listed beneficiary would have to submit a death certificate and go through an administrative process with the company holding onto the assets in order so they may receive a transfer of the money or securities. 

Is a lawyer required to probate a will?
You are not required to retain an attorney in order to begin the probate process of a will. But be mindful, you are also not required to hire a barber to give you a haircut. It is highly advisable you retain a legal professional when dealing with complex matters such as probate. Always consider hiring a New York probate attorney because they tend to have the experience, the discipline, and the comprehensive knowledge to help you with your case.

Should you have any further questions, contact the attorneys at Mishiyeva Law, PLLC., with your inquiry. Mishiyeva Law, PLLC., specializes in estate planning, probate, and estate administration. Located on 85 Broad Street 18th Floor, New York, NY 10004, the firm is ready to help individuals, family, and businesses with their estate and probate needs. Call today at (646) 535-1667 for more information.