Probate Attorneys, Court Avoidance & Alternatives to Probate

Probating a will is only a small part of what is involved in the administration of an estate. A will has no effect until it is “admitted to probate” in a probate court called the “Surrogate’s Court” in New York. The executor named in the will files a petition and the original will with the court. Those who would have inherited assets from the decedent had there been no will (called “distributees”) can object to the will on the basis that there is a later will or that the will was not properly signed; for instance, it was not signed before the required number of witnesses, the decedent did not have sufficient competency to sign a will, or there was undue influence. The distributees can sign consents and waivers stating they have no objection to the probate of the will. Most will probates are completed quickly and easily upon waivers. Sometimes, though, probate can become more involved and therefore more costly. In some instances, avoidance of probate is desirable, such as where there are unknown or minor distributees, where it is likely a distributee will file objections to the will without a true legal basis or where the estate owns real estate in another state.

So, in certain instances, we may advise you at the estate planning stage to avoid the probate process completely by establishing revocable or irrevocable trusts or by establishing appropriate beneficiary or transfer-on-death designations, or further by restructuring asset ownership. There are many ways to accomplish this depending upon the nature of the assets, and family and beneficiary relationships involved.

Sometimes clients hear that probate avoidance should be the most important estate planning objective. Probate of a will is but a small part of the estate administration process in most cases. In many of our matters, there is very little delay or cost involved in the probate process. So saving probate costs may be insignificant compared to the savings that can be achieved during the administration of the estate, through estate, gift and income taxes, avoiding costly disputes and litigation, and in minimizing other potential liabilities. In addition, testamentary trusts (established under a will) may have more asset protection features and better flexibility than a trust established under a trust agreement. An effective estate plan involves assessing the applicable risks and costs of the alternatives and establishing an estate plan tailored to your particular needs and objectives. We focus on real concerns, not phantom concerns.

At a person’s death, the executor, trustee or family members must address various matters. There are various ways to accomplish this depending upon your unique circumstances. Our estate planning attorneys are well versed in estate planning and estate administration matters and will provide you with the expertise, skill and support you need to navigate through the process.

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