What is Probate?
Probate is the formal legal process that gives recognition to a Will and formally appoints an Executor to administer the estate. In New York, probate occurs in the Surrogate’s Court located in county in which the deceased was a resident at the time of their death. For example, if the deceased was a Broome County resident, probate will occur at Broome County Surrogate’s Court. There are various steps to the probate process, including filing a formal petition, notifying necessary parties, establishing the legitimacy of the will, determining assets, accounting to the beneficiaries and ultimately distributing the estate assets. Probate is a complex process and can be simplified with the guidance and support of an experienced Trusts and Estates Attorney.
Probate v. Non-Probate Assets
Probate Assets
Probate assets are those assets that are in the decedent’s name alone, without a joint owner or a named beneficiary. These assets can include real estate, bank accounts, investment accounts, life insurance or any other asset that is titled only in the decedent’s name and without a named beneficiary. When the owner of the account passes away, these assets must go through the probate process.
Non-probate Assets
Non-probate assets are assets that are held jointly with another person or that have a named beneficiary. As opposed to probate-assets, non-probate assets pass directly to the designated beneficiary, without the need for probate. These assets can include property owned by a living trust or retirement account, life insurance or brokerage accounts that list a designated beneficiary on file with the financial institution.
Article written by:
Erin A. Cummings
Partner
E: ecummings@hhk.com
Erin A. Cummings is a Member of the Hinman, Howard & Kattell’s Trusts, Estates and Wealth Planning Practice Group. Her practice focuses on probate, estate administration and estate planning. She represents clients in a variety of proceedings in Surrogate’s Court.
Prior to joining Hinman, Howard & Kattell, Erin represented fiduciaries and beneficiaries in estate proceedings throughout the New York City area. She also regularly served as a Court Appointed Guardian ad Litem in New York State Surrogate’s Courts.