Are There Different Types Of Probate In New York?
Basically, a NY probate is the actual petition that is brought before the court when an individual dies with a will. A NY administration proceeding is brought when there is no will, and basically one of the two are needed in order to pass assets on from a decedent’s individual ownership. For example, if a person has, a piece of property and it is solely in their name and they pass away and if there is a will that leaves that piece of property to a child, some other family member or anyone else for that matter, the person that is appointed the fiduciary or executor of the estate, would be the person responsible for the estate and for bringing the will to my office if one exists, retaining my office and then petitioning the court for letters testamentary which is a court order which appoints the executor of the estate in order to get the legal authority to take that property from the estate and then ultimately pass it from the estate to the beneficiaries of the estate under the terms of the will.
The administration proceeding is similar. The only difference is you are not passing it through the terms of the will but the property needs to go through the surrogate court in order to have an administrator appointed with a court order called letters of administration so that the assets could be marshaled and then ultimately passed on to the beneficiaries of the estate pursuant to the heirs at law under the New York statutory framework for beneficiaries which follow the blood line and not a will, because you have no will.
Basically, probate and administration are the two terms or the two types of proceedings that have to be brought when an individual has assets in his or her name and passes on.
The probate or the administration proceeding is necessary in order to get the ability to get access to those funds or property and then ultimately have them inherited by the proper parties. You need to get in touch with a probate lawyer as soon as you can. The Law Offices Of Michael Camporeale P.C. have experienced probate lawyers who can help you at every step of the way. Call (718) 475-9639 today to speak to a probate lawyer in New York right away. We have been helping clients in Staten Island, New York, Brooklyn, Bronx, White Plains, Garden City, Melville, NY.
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Are There Any Options Available That Can Avoid Probate?
If an individual does the proper NY estate planning, with the proper NY estate planning attorney you could avoid probate, which is something that makes sense because avoiding probate, avoids all of the time consumptions and legal expenses associated with probate. Trying to avoid probate is a good thing to accomplish if you can, and the way you would accomplish that is by establishing a living trust prior to death, whether it is a revocable living trust or an irrevocable Medicaid asset protection trust.
Protecting assets from the nursing home makes the most sense, which is a part of my practice that I do because I am also an elder law attorney and a Medicaid lawyer and not just an estate planning lawyer. The Medicaid asset protection trust is a very valuable document because, (a), it protects assets from nursing homes, which is by far the most valuable or important part of that trust.
In addition, another very important or valuable part of having your estate placed into an irrevocable Medicaid asset protection trust is to avoid probate. The avoidance of probate is a good thing because it avoids the time, expense and delay of having the assets passed on to the beneficiaries of the estate.
With a living trust, you avoid the need of having to go to court and actually probating the will or going through the formal court proceedings before the surrogate court. If an individual did the proper planning and had a living trust established and funded, whether it was an irrevocable trust or a revocable trust, you avoid having the need to go through that probate process; therefore you have no need to actually petition the court, go through the formal proceeding, put proper parties on notice, so it is a much easier, faster and cheaper way of having your estate distributed at your death for the assets you put into your living trust. That is the better scenario If possible.
However, many times the surviving family has no choice but to go through probate because the proper planning was not done. It could be because the deceased just did not know any better or did not get the proper advice or did not want to deal with the situation. However, the better way is to plan properly in order to avoid probate and that can be done with the creation and funding of a living trust. To speak to a probate lawyer or an estate planning attorney or even an elder law lawyer in New York, just give us a call at (718) 475-9639 to schedule your FREE Initial Consultation. Our experienced attorneys will be happy to help you out. Our offices are located in Staten Island, New York, Brooklyn, Bronx, White Plains, Garden City, Melville, NY.
The Factors That Accompany Initiation Of The Probate Process
Basically, an individual obviously has to pass on, and then if they have a will, then it would be considered a probate. If they did not have a will, it would be an administration proceeding and then, obviously, they have to have the need to go through those procedures if they have assets in their name. For instance, I used an example earlier. A piece of property is one example, but if they had a bank account that did not have a beneficiary designated or a brokerage account that did not have any beneficiaries or payable on death named on those accounts. The only way to gain access to those funds or get those funds is either probating a will in NY if the person dies with a will or commencing and concluding an administration proceeding if the person died without a will, where the court either issues letters of administration or letters testamentary. Which are formal court orders which are only obtained after formal legal proceedings in order to establish an estate in NY.
Without the formal legal proceedings and those letters testamentary or letters of administration, the bank or the financial institution will not allow anyone to gain access to those funds. That court order, which is obtained after probate or administration is completed, then gives that person the ability to go into that financial institution, that bank, that brokerage house and actually obtain the assets of the deceased and have them placed in the estate account. Ultimately, then they have the ability with the proper court order, the letters of administration or the letters testamentary to then pass those assets out of the estate and to the beneficiaries of the will or to the estate if there is no will through the heirs at law under the New York statutory scheme which follows the blood line.
For more information on Different Types Of Probate, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 475-9639 today.
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