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An overview of how probate works

Probate is an important issue for New York residents to consider as they prepare for end-of-life needs such as estate management. One's estate planning can result in certain actions being required or avoided based on the manner in which final wishes are formalized. Concerns may arise that probate could leave room for changes being made to one's wishes, making it important to evaluate options such as wills and living trusts.

Probate is a process that is used to formally recognize a will. It also provides for the appointment of an individual to handle the administration of remaining assets. In a case involving an intestate decedent, the probate process would allow for appropriate beneficiaries to be identified so that assets can be distributed in accordance with state law. When a will exists, the probate process is used to validate the document and ensure that related wishes are addressed.

Although probate is often touted as being something to avoid if possible, some experts note that it is rarely as negative of a process as is reported. Some assets bypass probate due to beneficiary designations. Others include right of survivorship provisions that keep them out of probate. However, a living trust may be helpful for those who have significant assets to protect by allowing a trustee to be charged with the management of the estate without the interference of the court system. At the same time, it is important to recognize that a living trust can carry certain fees that come out of the estate when various assets are transferred.

Because the laws of the state could play a role in one's decisions about whether to execute a will or whether to invest in the development of a living trust, sound legal counsel may be important. A lawyer can provide information about the pros and cons of each based on a client's particular situation.

Source: American Bar Association, "The Probate Process", accessed on March 14, 2015

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