Q. WHAT IS PROBATE?
A. Probate is the legal process that allows the court to prove or disprove the decedent’s last will and testament, allows heirs to contest the will and appoints and grants authority to the executor of the estate to act on behalf of the estate during the estate administration.
Q. HOW DOES PROBATE START?
A. The probate process commences when a petition and original last will and testament are submitted to the Surrogate’s Court in the county where the decedent was domiciled at the time of death. The petition provides the court with the necessary information to move forward with validating the will and appointing the executor. The petition informs the court about the decedent’s death, the executor, the beneficiaries named in the will (as well as heirs who would inherit if there was not a will – if different) and the estimated value of property and assets passing under the will.
Q. HOW IS A WILL VALIDATED BY THE COURT?
A. All heirs are notified of the decedent’s death and the initiation of the probate process. Before the will is validated by the court, the judge (the Surrogate) must be satisfied that there are no objections to the will.
In New York, for example, the executor of the estate obtains signed waivers from each heir stating they waive the right to object to the will. The executor notifies heirs who do not sign the waiver of the required time and date to appear in court to make their objections. Any heirs who do not appear at the required time will be presumed by the court to have waived their right to contest the will. If there are no objections and if the will adheres to New York requirements, the court will validate the will. Please note that each state has its own set of regulations in admitting a will to probate. Please consult an attorney in the state where the decedent was domiciled at the time of death.
Q. WHAT IF THE WILL IS CONTESTED?
A. Any heirs that do not sign the waiver and appear in court at the required time may raise their objections to the validity of the will. In a separate hearing, the court will render a decision to either uphold the current will, revert to a previous will or reject a codicil (amendment) to the will or reject the will in its entirety.
Q. WHAT IF THE WILL IS REJECTED?
A. If the will is rejected in its entirety, the estate is distributed to the beneficiaries in accordance with the laws of the intestacy (which is determined by the State in which the decedent was domiciled at the time of death). In other words, the estate will pass to the beneficiaries in the same manner as if the decedent died without a will.
Q. HOW LONG DOES PROBATE TAKE?
A. Many factors impact the length of the probate process, such as county backlog of probate cases to be heard, time to locate and notify all heirs, and whether or not there are objections to the will. The process will take longer if there are objections to the will or to the appointment of the executor.
Q. WHEN IS PROBATE COMPLETE?
A. Once the executor has officially been appointed by the court to act on behalf of the estate, the executor is given documentation as proof of such authority. This documentation will be necessary to collect the decedent’s assets, manage bank accounts, etc. This marks the end of probate and the beginning of estate administration.
Q. WHAT IS ESTATE ADMINISTRATION?
A. Estate administration is a much more lengthy process that involves locating and collecting all of the decedent’s assets, reviewing and paying valid debts and claims against the estate, filing tax returns and paying applicable taxes, making distributions to beneficiaries from remaining assets, filing a final accounting of the estate and closing the estate. Note that estate administration is state specific when it comes to preparing and filing the estate tax returns. Please consult an attorney in the state where the decedent was domiciled at the time of death to learn more about the states regulations with respect to estate administration.