Are you wondering if you will have to go through Probate after the passing of a loved one who left behind a last will and testament? The answer depends on whether there was a trust set up in addition to the will. If there was only a will, then yes, you will have to go through Probate. It is important to keep in mind that the time frame, costs, and process of Probate can vary from county to county and state to state, as well as the laws governing the process.
The value of the estate is a crucial factor in determining the need for Probate. For instance, in New York, estates with a total asset value under $50,000 are not subject to a full proceeding and can simply file small estate forms. This article aims to educate you on the importance of Probate and how it is essential, with or without a will. Read on to learn more.
The Significance of Probate for a Will
Probate can be a confusing and misunderstood process. It is essentially a legal procedure that grants a beneficiary the authority to take ownership of the assets or handle the affairs of the deceased person. It is advisable to have an experienced attorney assist you in filing the necessary documents for Probate. This process can be time-consuming and complicated, especially if there are disagreements among family members. The first step is to obtain the original will and death certificate. It is crucial to not remove any staples from the original will, as this may invalidate it. If you need copies for your records, make them without removing any staples. When obtaining the death certificate, request multiple originals as they may be needed during the process. Mistakes in filling out the paperwork can delay or complicate the process.
Typically, the will names a person or people as executors. However, being named as an executor does not mean you are obligated to take on the role. You can step down and allow another family member to take your place. An executor has a fiduciary duty and is responsible for ensuring all debts and taxes are paid before distributing the assets of the estate.
The Importance of Creating an Asset List
When determining the need for Probate, it is crucial to create a detailed list of the assets owned by the deceased. You will also need to gather other important information, such as how the property was deeded. Were the assets solely in the deceased’s name, or were there joint names as well? Assets with joint names may have tenants in common. This information is essential in determining the value of the estate.
If the total assets in the estate are under $50,000, a full proceeding can be avoided by filing paperwork for small estates. Knowing how properties are deeded is crucial, as they may be outside of Probate and pass directly to the tenant in common. For example, if a married couple with two children owns a house and one spouse passes away, leaving a will that divides the assets equally between the surviving spouse and children, and the house is deeded to tenants in common with both spouses’ names, then the house will pass directly to the surviving spouse and will not be considered part of the estate or subject to Probate.
As you can see, there are many factors to consider when determining the need to Probate a will and what is considered part of the estate. If you are seeking guidance from an experienced attorney, we offer free consultations. It is also possible to plan ahead to avoid Probate altogether. Planning ahead can save time and money. Contact us today and let us assist you!
