Understanding Probate And Estate Planning Law In New York
This article unveils:
- What probate is in New York.
- How you can avoid probate.
- An effective frequency in which you should revisit your estate planning document portfolio.
What Is Probate? Should I Avoid It If Possible?
Probate is taking your will, bringing it to court, and filing it. Filing requires filling out several additional documents and submitting them to the court to be reviewed by a judge who ultimately decides who your executor will be. If you name an executor in a will, the court will review it to ensure the person is capable of doing their job.
An executor has a fiduciary position, meaning they are obligated to protect the estate. The court may or may not deem them able to do so for one reason or another. Generally, as long as there is a will in question, it should be probated in court.
You can avoid probate if a trust is involved in your estate planning case. For example, suppose your trust states that you want to give your house to your child. In that case, all you would need is an attorney to simply do the paperwork making the transfer of the house to your child effective.
The other way to avoid probate is not to have a will. If this is the path you take, your estate will pass by intestacy under estate planning law in New York.
Can I Realistically Handle The Probate Process On My Own?
You can realistically handle probate on your own – I have seen many people do it. However, I have seen just as many, if not more, stop halfway because they did not think they could complete what they started.
What county you live in and what court you would have to deal with may greatly influence how you would fall on this spectrum. Some clerks can be helpful, whereas others are not. Either way, courts cannot give legal advice at the end of the day. However, some may help you fill out some forms or explain what to do. In addition, some counties have pro se attorneys who may sit in the law library or elsewhere and assist you.
Simply put, if you can figure out the process, you do not need an attorney, but it is complicated. The more people involved, the bigger the family, and the more beneficiaries, whether they are family members or not, which means it becomes more complex. For this reason, I suggest at least having an attorney review what you have prepared and intend to submit to the court.
How Often Should I Update My Estate Planning Documents?
How often you should update your estate planning documents depends on how they are written.
When I prepare estate documents, I try very hard to construct them to protect my client from as many situations in the future. This eliminates the need, as much as possible, to frequently visit the document to make changes. I ask several questions that likely will not cross your mind, such as:
- What happens if your children are not alive? Do you want your assets to go to their children, your grandchildren?
- What happens if you buy or sell a house before you die, and the house is not in your will or trust?
If your will is written properly, you will not need to update it constantly.
Certainly, if something major happens in a relatively abnormal fashion or timing, such as your spouse dying at 47 years old while in good health, I would advise reviewing your documents as soon as possible. In addition, if your documents do not include things like buying and selling a home, I recommend reviewing them. Some of this may pass in a residuary or a catchall clause in your will, but reviewing to be sure is the safest route to take.
How often you review your documents under normal conditions depends on you. But, generally, checking up on them once every few years is a safe way to ensure everything is kept up to date.
With the guidance of a skilled attorney for Estate Planning Cases, you can have the peace of mind that comes with knowing that we’ll make it look easy. For more information on Estate Planning Law in New York, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (914) 350-3842 today.
