Can You Probate Your Will Before You Die?

Apr 09, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning, Probate, Wills

Probating your Will before your death often makes practical sense. By pre-probating your Will, you can avoid confusion about your Will, including whether it is your most recent Will and if you actually died with a written Will. You do not have to keep track of your Will and do not have to provide multiple sets of instructions to your loved ones about where they should keep your Will. If you can probate your Will before your death, your county clerk’s office or county recorder can index and record it for public retrieval. Not all county recorders, probate courts, or circuit courts (names for courts vary by jurisdiction) can probate your Will before you die. If your local rules allow you to pre-probate or register your will before your death, you may want to ask your probate attorney to do so or speak with he or she as to whether it is a good idea. If you draft a will, but your relatives or executor cannot locate it, you may be subject to your state’s intestacy statute. This means that the heirs to your estate are not established by your will. Instead, the succession laws applicable in your state establish them.

Even if you can probate your Will before you die, you should let your heirs know so that your Will directs or controls your testamentary intent, instead of the state intestacy statute.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

What Is A Personal Property Memorandum?

Mar 18, 2014  /  By: Barton P. Levine, Esq.  /  Category: Estate Planning, Probate

Your estate is made up of everything you own at the time of death. This may include real property such as your home, bank accounts, and retirement or investment accounts. It is also likely to include a significant amount of personal property. One option for how to handle your personal property is simply to bequeath all of it, without being specific, to someone in your Last Will and Testament. For many people, however, their personal property consists of family heirlooms, valuable collections, or other items that they wish to leave to specific beneficiaries. This is when a personal property memorandum comes in handy.

A personal property memorandum is basically a very detailed list of items that are part of your estate. The list also includes who you wish to give the item to as well as the value of the item if you choose to include that. One major benefit to using a personal property memorandum is that you can reference it in your Will and then make changes to the memo if need be down the road without having to change your actual Will. One drawback, however, is that not all states consider a personal property memorandum to be legally binding. In those that do, you must follow the proper procedures for it to be recognized.

In practical terms, even if these memos are not legally binding in the state where you execute your Will, they can often go a long way toward settling family disputes that are based on claims that an item was promised to an heir. When you make it clear in your own handwriting whom you wish to have which item it makes it hard to argue against your wishes.

 

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Choosing Your Executor

Mar 14, 2014  /  By: Heather D. Levine, Esq.  /  Category: Estate Planning, Probate

When you create an estate plan, there are numerous decisions that must be made. Many concern the division and distribution of your estate assets; however, some important decisions relate more to positions within your estate plan than to the assets themselves. Your choice of executor, for example, is one of the most important decisions you will make when creating your estate plan.

The executor of your Last Will and Testament has a very important job to do regardless of the size of your estate. The larger and more complex your estate is though, the more difficult your executor’s job will be. People often make the mistake of simply naming an executor without giving much thought to what will be expected of the executor. Consider the following common duties of an executor:

  1. Locating all estate assets
  2. Inventorying all assets
  3. Valuing all assets as of the date of death
  4. Locating all beneficiaries or heirs
  5. Filing the proper documents with the probate court
  6. Notifying beneficiaries, heirs, and the public of the probate
  7. Reviewing and paying debts of the estate
  8. Defending any challenges to the estate
  9. Preparing and filing all tax returns due for the decedent and the estate
  10. Distributing the estate assets

As you can see, the role of executor can be extremely time consuming and complicated. While most executors retain the services of professionals such as an estate planning attorney and accountant, the executor is ultimately responsible for properly probating your estate which makes your choice of executor an important one.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Why Is Avoiding Probate So Important?

Mar 04, 2014  /  By: Barton P. Levine, Esq.  /  Category: Probate

Probate is the legal process that typically follows the death of a decedent. During the probate process, the decedent’s assets are inventoried, valued and eventually distributed to heirs or beneficiaries. Most people realize that avoiding probate, to whatever extent possible, is desirable; however, understanding exactly why it is important may help you when creating your estate plan.

The probate process incurs expenses and takes time. These are the two primary reasons why you want to decrease your estate’s exposure to probate. Even the simplest estate can require months to make it through the probate process. During that time, valuable assets may be tied up and unavailable to your intended beneficiaries. If you leave behind a spouse and/or minor children, chances are that you want them to have access to at least some of your estate assets right away in the case of your death which requires an estate plan that avoids probate as much as possible.

Along with the time probate requires, you should also consider the cost. The executor or administrator of your estate will be paid a fee for his or her services. In addition, an estate planning attorney and accountant or financial advisor may be needed to properly probate the estate. All of these fees will come off the top of your estate assets. By creating an estate plan that minimize the need for probate you are also ensuring that more of your estate assets actually go to your loved ones.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Is Probate Always Required in New York?

Dec 20, 2013  /  By: Barton P. Levine, Esq.  /  Category: Probate

As a general rule, when someone dies the decedent’s estate must pass through the legal process known as probate. Probate serves two three primary purposes. First, it ensures that the decedent’s assets are located, inventoried and valued for tax purposes. Second, it allows creditors of the estate to file claims against the estate. Finally, it provides a legal mechanism for assets of the decedent to pass transferred to the intended beneficiary or heir of the estate. Formal probate can take months, even years, to accomplish. The longer the probate process the more expenses involved – expenses that are paid for out of estate assets. Because of the time and expense involved in formal probate, we are often asked “Is probate always required in New York?” The simple answer is “no” which is why probate avoidance is a common estate planning goal.

New York, like most states, offers alternatives to formal probate for estates with minimal assets. An estate with assets valued at less than $30,000 that does not include real property can be probated using a small estate affidavit. If the only asset a decedent left behind was a house, you may also be able to transfer that without the need for formal probate. Because these options only apply to a limited number of estates, the best way to avoid probate is to plan to avoid it.

Not all assets are part of the probate of your estate. Probate avoidance, therefore, as part of estate planning focuses on leaving behind assets that are not required to go through probate, such as:

  • Life insurance proceeds – proceeds of a life insurance policy are not required to go through probate. Instead, they are paid out shortly after death to the beneficiary listed on the policy.
  • Trust assets – assets held by some types of trusts are not required to go through probate because they are no longer considered to be owned by you.
  • POD/TOD – “Payable on Death” and “Transfer on Death” account designations can be used on financial accounts, securities, and in some states vehicle titles to automatically transfer ownership to a named beneficiary upon death of the account/title owner.
  • Co-owned property – With the proper type of co-ownership, your interest in real property will transfer directly to the co-owner upon your death, bypassing probate entirely.

Be sure to consult with your estate planning attorney to decide what strategies and tools you can include in your estate plan to avoid probate.

 

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

How Long Does Probate Take?

Nov 25, 2013  /  By: Barton P. Levine, Esq.  /  Category: Probate

Creating a successful estate plan often requires a consideration of a wide variety of goals and objectives. While the distribution of your estate assets when you die is likely your primary goal, other objectives may also be included in your plan, such as probate avoidance. To understand why you may wish to include probate avoidance in your estate plan it helps to understand how long it takes to probate an average estate.

Probate is the legal process that is required following a death. The primary purpose of probate is to ensure that the decedent’s assets are accounted for and eventually transferred to beneficiaries according to the decedent’s wishes. In the event of an intestate estate, probate is used to ensure that the estate assets are handled according to the state’s intestate succession laws. Most states, including New York, do offer simplified probate procedures for small estate; however, for estates that are required to go through formal probate the process can be long and costly.

The amount of time it takes to probate an estate will depend on many factors such as:

  • The value of the estate
  • The type and complexity of the assets held by the decedent
  • How well the executor/personal representative handles the administration of the estate
  • Whether or not a challenge to the estate is filed

Even a relatively uncomplicated estate will often take the better part of a year to probate. Larger estates and/or estates with complicated assets or litigation will frequently take years to probate. During the time an estate is being probated, the estate assets are tied up in court and often unavailable to the intended beneficiaries. Moreover, the longer it takes to probate an estate, as a general rule, the higher the costs. Everyone involved in the probate process, with the exception of the court itself, is entitled to a fee for his or her services throughout the process. In addition, managing estate assets during the probate process also involves costs. All of these expenses are paid out of estate assets, meaning that the longer it takes to probate an estate the fewer assets will go to the intended beneficiaries or heirs at the end of the probate process.

All of the reasons make probate avoidance a common estate planning goal. If you want to decrease the amount of time it will take to probate your estate talk to your estate planning attorney about incorporating probate avoidance strategies into your estate plan.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Does Your Law Firm Handle Probates?

Nov 21, 2013  /  By: Barton P. Levine, Esq.  /  Category: Probate

At some point in your life the odds are favorable that you will become involved in the probate of an estate. Going through the probate process can be an emotionally traumatic time if the decedent was a family member or close loved one. If you are named as executor of the estate it can also be a time-consuming and intellectually challenging process. For all of these reasons you may wish to consider retaining the services of the Law Offices of Barton P. Levine if you find yourself involved in the probate of an estate.

When an individual dies, he or she leaves behind an estate. The estate may be small, consisting of nothing more than personal belongings and a small savings account or the estate could be worth millions of dollars and be comprised of numerous and varied assets. Estates comprised of simple assets and the do not exceed the current limit set by law may qualify for an alternative to formal probate in New York. All other estates, however, must pass through formal probate in New York. The purpose of probate is to ensure that all of the decedent’s assets are accounted for and valued at the time of death. Ultimately, this ensures that estate assets are passed down to the intended beneficiaries or heirs of the estate and that all taxes owed by the estate are paid. Probate also affords creditors of the estate the opportunity to file claims against the estate and receive payment out of estate assets.

If you are appointed as executor of an estate, or you petition to be the personal representative, there are a number of duties and responsibilities that go along with the position. Administering and estates throughout the probate process often requires at least a rudimentary knowledge of various areas of the law. This is one of the many reasons why it makes sense to retain the services of an estate planning attorney to assist throughout the probate process.

If you are a beneficiary or heir of an estate and you have questions about the probate process or you wish to challenge the decedents Will by filing a Will contest our firm can also help by answering your questions and/or representing you throughout the litigation if you have valid grounds to challenge the decedent’s Will.

Regardless of your role in the process, probate can be an emotionally charged time that can be made a bit easier by enlisting the assistance of the experienced estate planning team at the Law Offices of Barton P. Levine.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Can Probate be Avoided?

Oct 04, 2013  /  By: Barton P. Levine, Esq.  /  Category: Probate

Estate planning frequently involves numerous goals and objective aside from simply deciding on the best way to distribute your estate assets after your death. While each estate plan is unique, there are some common estate planning goals. Probate avoidance is one of those common goals. Not all estates can avoid probate altogether; however, careful estate planning can certainly limit your estate’s exposure to the probate process.

Before you start working on strategies to avoid probate you should be sure you know what probate entails. Probate is the legal process that typically follows the death of an individual. The purpose of probate is to provide a legal framework by which a decedent’s estate assets can be passed down to the intended beneficiaries and/or heirs. Probate also allows creditors of the estate the opportunity to file claims against the estate to ensure they are paid out of estate assets.

So why is probate avoidance such a common estate planning objective? There are two important reasons why people typically want to avoid probate – time and expense. The probate process can take a year or more to complete. During this time estate assets may be tied up, meaning that the intended beneficiary cannot benefit from the gift. It also means that your loved ones have to be reminded, on a regular basis, about their loss. Furthermore, the longer the probate process takes the more the costs increase. The executor of your estate receives a fee for overseeing the process as does the estate planning attorney who represents your executor. These fees can significantly diminish the value of your estate if the probate process drags out for a long time.

Like many states, New York offers alternatives to formal probate for estates that qualify. To qualify, an estate must not have significant assets. If your estate will not qualify for small estate administration, you will need to rely on your estate plan to avoid, or at least diminish your estate’s exposure to, probate. The key to that is to transfer assets out of your estate prior to your death. Only assets owned by you at the time of your death are included in the probate process. Assets held by a trust, for instance, will not be included in the probate of your estate.

By working closely with your estate planning attorney you should be able to utilize strategies that will help reduce your estate’s exposure to the probate process, thereby ensuring that your loved ones will receive all of your assets in a timely manner.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

What Is an Executor?

Sep 23, 2013  /  By: Barton P. Levine, Esq.  /  Category: Probate

For most people, the foundation of their estate plan is their Last Will and Testament. For some, a Will is the sum total of their estate plan; however, most people include additional estate planning documents in their estate plan as well.  Whether you have a simple plan or a complex plan, it all starts with your Will. In fact, one of the most important decisions you will make in your estate plan is made in your Will – the appointment of an executor.

Unfortunately, people frequently breeze over the appointment of an executor when drafting and executing their Will. People typically appoint a spouse, parent or adult child without giving the appointment much thought. This cavalier attitude toward the appointment usually stems from the fact that people don’t actually realize what an executor does and how complicated, time-consuming, and challenging the job can be.

The individual you appoint as executor serves not only as the executor of your Will but as the executor of your entire estate in most cases. In other words, your executor does not simply read your Will to beneficiaries and walk away. Instead, your executor is typically in for months, even years, of work after your death.

When you die, the original copy of your Will must be located. Once that has been accomplished, the individual named as executor in the Will must immediately accomplish two important tasks – securing estate property and opening the probate of your estate.  For all but the simplest estates and executor will typically retain the services of an estate planning attorney to assist during the probate process. Ultimately, however, probating the estate is the executor’s responsibility.

Your executor will need to locate, inventory, and value all of your estate property. If you owned real property, unusual or valuable personal property, and/or were an investor of any kind the job of valuing your property can be cumbersome.

The next phase of probate involves creditors of your estate. Your executor must provide legal notice to all unknown creditors that probate is underway. Claims against your estate may then be filed by those creditors. Your executor must review each claim and approve or deny the claim. If the claim is approved your executor must pay the claim from estate assets. Sometimes this involves selling estate assets to liquidate the assets.

In the event that a challenge to the estate is filed, such as a Will contest, your executor must defend the estate throughout the ensuing litigation. Finally, when all property has been accounted for, all claims against the estate handled, and all litigation concluded, your executor must prepare and file taxes relating to your estate. Once that has been completed, the remaining estate assets can be transferred to the intended beneficiaries.

As you can see, your executor has numerous and varied responsibilities throughout the probate process. An error during probate can cost your estate money – money that was intended for beneficiaries. For these reasons, be sure you use care when choosing your executor.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.

Common Costs Associated with the Probate Process

Sep 18, 2013  /  By: Barton P. Levine, Esq.  /  Category: Probate

Despite the fact that most Americans understand the need to create an estate plan over half have yet to do so. If you are among that half you likely have a number of explanations for why you have yet to sit down and create your plan. While there are an infinite number of reasons why people put off estate planning there are a few excellent reasons why you should stop procrastinating. Among those reasons are the common costs associated with the probate process.

You have probably heard many times the probate should be avoided. In fact, probate avoidance is one of the more common secondary goals of estate planning. Understanding why probate avoidance is a common estate planning goal should provide you with a powerful incentive to finally create your estate plan. In short, there are two basic reasons why people want to avoid probate-time and money.

As a general rule, the more assets you own at the time of your death and the more valuable those assets are the longer it will take to probate your estate. The longer it takes to probate your estate the more time your beneficiaries will have to wait before they receive the assets you intended them to receive. In addition, the longer it takes to probate your estate the higher the cost. The costs involved in probate in your estate are paid out of your estate assets, resulting in a diminished value to your estate.

 

Although the costs involved in probate will vary there are a number of costs that are common. The executor, or personal representative, who is in charge of overseeing the probate process will be paid a fee for his or her services. Your executor will likely retain the services of an estate planning attorney to assist during probate. The attorney will also be entitled to a fee for his or her services. The fees charged by both the executor and attorney will be directly proportionate to the length of time it takes to complete the probate process. In addition, if your estate includes real property or valuable personal property at the time of your death professional appraiser fees will likely be another cost incurred during probate. If your estate includes complex or valuable financial or investment accounts an accountant may be needed, meaning another fee. Finally, estate assets must be secured and maintained throughout the probate process. Every month that goes by means another month worth of costs associated with securing those assets.

 

By now it should be clear that there is a direct relationship between the length of time it takes your estate to get to the probate process and the costs involved in probate. By creating a comprehensive estate plan now your estate may be able to avoid probate altogether or at least reduce the amount of time spent in probate considerably with the end result being a drastic reduction in the costs associated with probate. By reducing those costs you leave more assets behind for your loved ones.

The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.