The Basics of Probate

Probate is the tedious process in which the will of the decedent is filed and administered in the Surrogate’s Court under the court’s supervision.  Although an executor is typically named in the last will and testament of the deceased, the appointment is not automatic.  The named individual does not instantaneously become the executor of the estate upon the passing of the testator. The Surrogate’s Court must officially issue a court decree appointing the person as the personal representative. If the executor named in the will has a felony conviction or does not reside in the United States, the court will decline the appointment.

Once officially appointed, the executor (also known as the personal representative) wears many hats. The representative is responsible for obtaining homeowner insurance if the estate consists of a real property, hiring a real estate broker if the property need to be sold, retaining tax specialists in preparing the tax returns for the decedent and the estate, possibly hiring a landlord and tenant attorney to evict tenants who fails to vacate the estate property, collecting any rents of the estate, and depositing funds into an estate bank account. Once all ancillary matters are finalized, the executor distributes the estate property to the beneficiaries named in the will.

Probate proceedings are governed by the law of the state in which the decedent lived or owned real property. It is not unusual for court rules and practices to differ from county to county let alone state to state.  In order to commence the process of opening an estate, the last will and testament must be filed with the Surrogate’s Court and typically a filing fee paid. Sadly, there are many instances in which the executor or someone in possession of the will refuses to file it with the court. In such cases, a petition must be filed with the court compelling the individual to produce the will. It may also be the case that the named executor has no interest in serving as the representative for the estate. In this situation, the named executor may renounce (waive) his or her rights, and an interested party may step in and petition the court for their appointment.

What happens if there is a will but it is believed that the decedent left no assets to be probated? You should still file the will. Assets that are not subject to probate typically include the following:

• The decedent simply had no money or property;
• All assets were held jointly with another individual (such as a spouse) with rights of survivorship;
• The decedent had all of their assets transferred into a revocable trust prior to their death; and/or
• The decedent’s estate consists primarily of life insurance policies and/or retirement accounts in which the beneficiaries are named. If there are no designated beneficiaries, the assets must be probated.

The Concept of a Preliminary Executor

If you have been named as the executor in someone’s will and that individual passes away, be sure to examine the estate planning documents to get a better understanding of the assets of the deceased. There may be assets that need to be probated which require your immediate attention. Rents may need to be collected, the monthly maintenance expenses of a co-op or a condo apartment may need to be paid, or a wrongful death action may have to be filed on behalf on the estate. Without the title of an executor, you cannot act on behalf of the estate. If the estate property needs to be preserved or it is simply the case that bills have to be paid, consider filing a petition to become a preliminary executor. It can take months or several years, if the matter is contested, to be officially appointed as the executor of the estate. On the other hand, securing the appointment as the preliminary executor can take as little as a few weeks.

The following is a short list of useful reasons to become a preliminary executor:

• Preservation of the value of stocks, bonds, mutual funds, and other securities which were held by the decedent: The nature of the stock is that of volatility. An impending financial crash within the equity or bond market will warrant the need to sell the said assets.
• Continuation of the decedents business: A running successful business requires attention.  As the preliminary executor, especially with a smaller business, you may need to get in touch with the staff immediately and ensure business proceeds are flowing and are accounted for until the wishes within the last will and testament regarding the company are adhered to.
• Management of real property: Whether it is a mortgage, taxes, or monthly maintenance dues, bills have to be paid. If the decedent owned investment rental property in which tenants presently reside in the premises, the rent must be collected and deposited into an estate bank account.
• Impeding lawsuit: the decedent may have died as a result of medical malpractice or a car accident. As the preliminary executor, you are the only person vested with the power to retain an attorney and litigate the matter on behalf of the estate.

This article is a mere glimpse into the many nuances surrounding probate. If you have any questions on the subject of probate or estate law, feel free to contact our firm at (646) 535-1667. We are located in 85 Broad Street New York, NY 10004. If you need an estate lawyer, be sure to give us a call and we will be happy to assist you with your case.