Puzzled by Probate?

August 18, 2014

The other night I spoke about "life-planning documents," like wills and powers of attorney, at a bereavement group for people whose spouses have recently died.  Before I gave my presentation I asked for questions, because I'd been told that some of the attendees had concerns about issues they'd faced following their spouses' deaths.  Right away a quite sophisticated and prosperous-looking elderly lady asked, "What is probate?" That such a seemingly well-educated senior would ask this question reminded me that even many otherwise well-informed people know little about the subject.  So I thought I would send an email to you briefly outlining the basics.

What is probate?

Probate is, essentially, the process by which the New York State Surrogate's Court determines the validity of a last will and testament and authorizes the distribution of the deceased person's property to his or her heirs, or distributees.  If the court decides that the will is invalid, or there is no will at all, property is distributed according to state law (called the law of “intestacy”), via the process of “administration.

What is probate property?

One way to answer this question is in the negative.  Some types of property are NOT affected by probate.  Non-probate property includes bank accounts with a payable-on-death designation (assuming that the person designated to receive the funds is alive), IRAs or other accounts with a named beneficiary, property held in a trust, life insurance proceeds, and real estate held jointly with someone else.  These types of property will pass to the people intended to inherit them without any involvement of the court.  When people talk about "avoiding probate," this is what they have in mind.

Who distributes probate property?

After someone dies, the property that they owned that is affected by probate -- such as their coin collection, let's say, or their car, or money in an account with no named beneficiary -- is said to be owned by their estate.  The person whose job it is to handle the probate process and distribute the estate's property is the “executor” (or, in the case of an administration, the “administrator”).  The people (or, not infrequently, charities or other organizations) who receive this property – after any payments to creditors or tax authorities are made – are the distributees, or beneficiaries.

The probate or administration process will be more or less complicated depending on the quantity and nature of the probate property involved, which, if it totals less than $30,000, can be handled via a “simple administration.”

Where can clients get help?

Often people who have been named as executor in a will, or who want to become an estate administrator, don’t know where to turn for help.

Answers to frequently-asked questions can be found on the NYS Court System’s website, by clicking here, and the Surrogate Court clerk’s office, located at 31 Chambers Street, can be helpful.

I know of only two legal-services offices that offer free assistance with probate proceedings.  One is the New York Legal Assistance Group (NYLAG), which can be reached at (212) 613-5000.  The other is the City Bar Justice Center’s Planning and Estates Law Project, which can be reached at (212) 382-6756.  My understanding is that neither program assists in cases where the estate is contested -- that is, where someone is arguing that the will is invalid in some way. 

And, as always, you can refer your clients to one of our many monthly clinics for free advice and referrals on this and many other legal subjects.

-- Alex