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Estate Planning Newsletter

What is Probate?

Probate, a Latin term meaning “to prove the will,” is a court-supervised process that settles a person’s affairs after death.

To ensure that the decedent’s final matters and wishes are handled correctly and without bias, most states have probate courts (or special departments of the court) to oversee the settling of estates. Probate may occur even if there is no will.

Court Appointees

Usually the court will appoint one of 2 types of persons to oversee the decedent’s final affairs:

  • Executor – Typically the person, bank or trust company named in a will to administer the estate
  • Administrator – Typically appointed if the decedent died without a will (intestate)

On behalf of the decedent, the probate court makes certain that:

  • Any final bills and expenses are paid, including any taxes owed
  • Any assets remaining are distributed to the beneficiaries named in a will
  • If there was no will, any assets remaining are distributed to the correct heirs under the laws of intestate succession

What Qualifies for Probate?

The deceased person’s estate must have assets (such as real estate, bank accounts, securities) before probate occurs. Each state sets its own requirements on when probate is necessary, usually according to the value of an estate’s assets.

In some states, the assets must be at least $10,000 to go through probate, or modified probate. However, other states allow assets of up to $100,000 before probate occurs.

These assets would not include any real or personal property of the decedent’s that others receive directly through joint tenancy, trusts, life insurance benefits, right of survivorship or other means.

Reasons to Avoid Probate

The primary disadvantages of probate are:

  • The time it takes for an estate to be administered through the probate process
    (which can span anywhere from several months to several years)
  • The cost involved in the probate process (which can include fees for the court, estate administrator, attorney and taxes)
  • The "Fraud Rectifying" Trust Remedy
    A constructive trust is a remedy imposed by the court when a person has wrongfully attained property. The court basically takes the property away from the wrongful owner and puts it in trust for the rightful owner. In the estate... Read more.
  • The Uniform Anatomical Gift Act
    Statistics from the U.S. Department of Health and Human Services indicate that while an average of 75 people receive an organ transplant each day, 18 people die each day while awaiting an organ transplant. The Uniform Anatomical Gift... Read more.
  • Tax Deductions for Donations of Property to Charities
    The U.S. government has long encouraged citizens to contribute to charity. One method of encouraging philanthropic giving is the allowance of deductions from income for federal tax purposes for donations to “qualified”... Read more.
  • Privacy Rule May Impact Estate Planning
    The Health Insurance Portability and Accountability Act of 1996 (HIPAA) became effective on April 14, 2003. HIPAA establishes national standards for the protection of certain health information. The purpose of HIPAA is to ensure that a... Read more.
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Law Offices of Christelle G. Clement is located in New York, NY and serves clients in and around New York, Long Island City, Brooklyn, Astoria, Sunnyside, Woodside, Maspeth, Middle Village, Jackson Heights, Bronx, Elmhurst, Ridgewood, East Elmhurst, Rego Park, Corona, Woodhaven, Jamaica, Bronx County, Kings County, New York County and Queens County.

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