What Are The Top Misconceptions About The Probate Process?
A lot of people sometimes believe that because a person passed away, they automatically have to have a probate proceeding, which is not the case because if an individual did the proper planning and had a living trust established and funded that would avoid the need for probate. Also probate is not needed if they had had assets that left beneficiaries designated on them. That is one misconception. Not every person that dies that had assets prior to death means that an estate proceeding or probate proceeding is necessary.
The other big misconception is most people, sometimes believe that probate or letters testamentary or letters of administration is something that an attorney gives on his letter head.
Which is not the case, letters testamentary or letters of administration which are needed by banks or brokerage houses or insurance companies are formal court orders that are obtained only after a formal court proceeding takes place in surrogate court.
Lots of times after a person passes on a family member goes to the bank, to the financial institution or to the insurance company where the deceased had an account or policy to collect on said account or policy and the person at that institution, informs them that they need to get letters “testamentary” or, “letters of administration” and that they need a lawyer to get that, so a lot of people are just under the misconception after hearing that being told to them by these bank people that it is simply just going to a lawyer and saying, “Mr. Probate lawyer” or, “Mr. Estate lawyer, can you please just write me a letter on your letter head?, because of the terms that are used for the court order include the word “letters”.
That is a very big misconception and what I have to then explain to the client is that it is not simply me sitting down and writing a letter on my letter head that is going to get them access to these funds and or assets. I have to explain that it is formal legal proceeding that has to be brought before the surrogate’s court and it has to be done formally on petition. Just like any formal court proceeding, it requires notice to all necessary parties including blood relatives, because the law requires you give them an opportunity to look at the will or come into court and find out what is going on and give them an opportunity to be heard and have their interests protected. Those are generally the two biggest misconceptions that are out there regarding the probate proceeding or an estate proceeding in NY.
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Negative Perception Of The Probate Process In New York
Probate has a negative perception in NY, because nobody wants to be told that after a family member or loved one has passed on that they have to go to court and wait in order to get that inheritance that they feel they are entitled to. Nobody wants to wait, no one wants to have to wait. Just having the will is just the very beginning stages of having to go through the probate process. It is not the will itself that confers the ability to handle the estate, it is the actual probate process or the culmination of the probate proceedings where letters of administration are issued or the letters testamentary are issued, which then gives you the authority to marshal the assets and then pass them on to the beneficiaries of the estate. The reasons people don’t enjoy having to go through probate is because of the fact that it is time consuming, and expensive, because it is a formal court proceeding and because it requires them to put other family members on notice of the legal proceedings even if they are not named in the will.
Because of that, blood relatives who may not even be named in the will have the ability to come in and object, which would then slow the legal proceeding down even further and open it up to litigation.
Just because a person has a will and it is offered for probate does not guarantee that it is going to be accepted by the court or approved. It has to be approved by the court, you have to put blood relatives on notice because if they would stand to inherit through the bloodlines, it gives them an opportunity to come in and to object, so if that blood relative feels as though they are not happy with the fact that they did not get X in the will or they felt like they deserved more, they could object to the will and cause litigation to occur which will slow down the whole proceedings by filing what is known as objections to the will, which basically now means you are in litigation and the whole process is going to take even longer and cost even more money to get to the end in order to have the estate properly established and concluded, and that is generally why people are not happy when they know that they have to go through the probate process.
It is a good idea to avoid probate if you can and the way you avoid probate is by planning properly but, probate sometimes is a necessary thing that needs to take place. If it does, you have no choice and you have to do what you have to do in order to gain access to those assets. If you plan ahead and plan properly, you can avoid probate and lessen the burden that your family members will have to face after you leave this world.
Most people want access to their inheritance yesterday and feel that they are entitled to inherit it immediately and that they should not have to wait for a Court to ok it. So when you tell them that they have to wait until the whole legal process is complete, which could be months or if there is litigation, it could be years, they do not like to hear that. In addition, because it is a formal legal process that takes months to complete it requires legal fees generally based on the value of the estate or at an hourly rate. So that is why people want to avoid going through probate, and that can only happen if people do the proper planning before they pass away.
To make the whole process as stress free as possible, make sure you get in touch with a probate attorney as soon as possible. An experienced New York probate and estate administration lawyer knows exactly what clients are looking for. The lawyer will be able to take care of all your needs and also work on a plan for you that will help you in your later years. At The Law Offices Of Michael Camporeale P.C., we have experienced and qualified estate planning lawyers, elder law attorneys, Medicaid planning lawyers, probate lawyers, estate planning attorneys, and elder law lawyers who are ready to assist you.
For more information on Misconceptions About 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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