Probate is the legitimate procedure of managing the estate of a dead person by determining all claims and allocating the dead person’s property under a lawful will. A surrogate court resolves the legitimacy of a testator’s will. A probate reads between the lines the guidelines of the dead, chooses the initiator as the personal representative of the estate, enforces the provisions, prevents malfeasance by executors and judges, the interests of successors and other parties, who may have claims against the estate. Similarly, probate courts provide impartial propagation of the assets of people, who die intestate (without a valid will), such as by granting a grant of administration giving official approval to the personal representative to manage problems of the estate. They also deal with matters, which may comprise conservatorships, guardianships, name changes, marriages, and adoptions, though these issues are allocated by family courts.
In challenging matters, a probate court scrutinizes the authenticity of a will, and thus, decides who is to receive the dead person’s property. In a case of intestacy, the court determines who is to receive the deceased’s property under the law of its authority. The probate court will, then, administer the process of distributing the deceased’s assets to the proper beneficiaries. In some jurisdictions, such courts are also referred to as orphans courts, or courts of ordinary. Not all jurisdictions have probate courts. Thus, they are handled by chancery court or another court of equity. The court has the authority to compel the executor to give an account of his actions.
Since probate administration is a procedure by which a will of a deceased person is proved to be lawful, such that their assets can, be transferred or reassigned, in due course to recipients of the will. As with any legal ensuing, there are procedural aspects to probate administration, wherein the creditors need to be informed, and at the same time, legal notices need to be sent to them. Distribution of assets, in the right mannerism, takes the creditor’s rights into account. Thus, the facilitators of the will need to be channeled. A requisition to appoint a personal representative may need to be filed and Letters of Administration should be obtained. Small holding property must be dealt with discretely from the other assets. There are time dynamics involved in filing and objecting to claims, which go against the estate. There may or may not be a grievance pending over the decedent’s death or the other possibility could be pending suits that are now continuing.
There may be separate procedures required in intense probate cases. Properties or real estate may need to be traded to effect the precise distribution of possessions that are pursuant to the will or merely to pay off debts. Estate taxes, gift taxes or even legacy taxes must be considered, if the estate surpasses certain thresholds. Ordinary taxation, such as income tax on interest and property taxation, will be withheld from possessions in the estate, before there is any distribution by the executors of the will, which are the costs to the management, whereas the other assets may merely need to be transferred from the deceased to his or her beneficiaries as per the will. To arrange certain possessions in the estate, it is vital to sell the illiquid assets as well as real estate. Some of the decedent’s property may never enter probate, because it passes to another person on a contract, such as the death continues of an insurance policy insuring the decedent or bank or retirement account that names a recipient or is owned as payable on death, and property legally held as jointly owned with right of survivorship. Property, which is held in a revocable or irrevocable faith created during the grantor’s tenure, avoids probate. New York’s court can take no action, thus, the property is distributed privately, subject to estate taxes.
For instance, if the decedent died without a will, the estate will be distributed according to the laws of the state from where the decedent lived or was held by the court. If the decedent died with a will, the will usually names an executor, who organizes the decedent’s assets. The probate and administration law court can appoint one for probate administration, if there is no will or no name that has been given. Sometimes, the executor cannot administer the probate, or may wish to have someone else do the same. That’s when another person is named as an administrator. Thus, the respective person may receive compensation for his service.
Paul is a admitted to practice both in New York and Florida, and has many clients with residences in both states. He is also admitted to practice in the United States Tax Court as well as the Southern and Eastern Districts of New York. He is a member of the New York State Bar Association, Westchester County Bar Association and Florida Bar Association. He is an active member of the Estate Planning Counsel and has also served on the Executive Board for the Tax Committee and the Trusts and Estates Committee.
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