You may look at estate planning as an exercise in document creation. Without question, you do create legally binding documents when you plan your estate. At the same time, there are actions that must be taken after your passing to bring your wishes to fruition. There are multiple different methods that you can use to facilitate asset transfers. However, if you use a will, it would be admitted to probate. In many states, the Uniform Probate Code governs how the probate process is complete. Here is what you need to know.
The basics of the probate process
Probate is the legal process of estate administration, and it takes place under the supervision of a court. If you maintain sole and direct ownership of property up until the time of your death, and you arrange for its transfer through the terms of a last will, the executor or personal representative would be required to admit the will to probate.
There is a proving of the will during the probate process. The court examines the document to make sure that it is valid, and anyone who wanted to challenge the will could step forward during probate.
Final debts would be paid out of assets that comprise the estate, and this would include final taxes. At the conclusion, the assets would be prepared for distribution to the inheritors. This can involve appraisals and liquidation of property, and this adds to the time consumption.
Uniform Probate Code
Now that we have provided you with an underpinning of information, we can look at the Uniform Probate Code. Back in the 1960s, legal authorities determined that the probate process should be streamlined and simplified. They wanted to create a unified code that would be used all over the country.
The National Conference of Commissioners on Uniform State Laws worked with the American Bar Association, and the Uniform Probate Code was approved in 1969. As it turned out, the initial goal of uniformity never really came to fruition, because the Uniform Probate Code has only been adopted by 16 states.
We practice law in the state of New York, and our state has never adopted the entire Uniform Probate Code.
The probate process is not that simple
In reality, things do not work as swiftly as most people think and this is something you should fully understand. If you use a last will to state your final wishes, the executor that you name in the document would be required to admit the will to probate after you die.
The probate process is a court-supervised process
During the probate process, a court gets involved. In the state of New York, probate matters are handled by the Surrogate’s Court. The first order of business for the court will be the proving of the will. The court would examine the will to make sure that it was validly constructed in accordance with the laws of the state of New York.
Challenges to the will may occur
There are various different grounds upon which a will could be challenged by interested parties. In order for a will to be valid, the person executing the will must have been of sound mind. So, if this was in question, an argument could be presented during probate.
Coercion, fraud, intimidation, and improper execution would also be grounds that could be used to challenge the validity of a last will. Clearly, if there is a challenge to the validity of the will, the probate process is going to be elongated while arguments are presented before the court.
The timing depends on many factors
All in all, the exact duration of the probate process will depend on the circumstances. If things are complicated, it can take years. Even if everything goes quite smoothly, the process of probate will typically take eight to nine months to a year at minimum.
How to speed things up
If this time lag is not to your liking, you do not have to use a last will as your vehicle of asset transfer. To facilitate asset distributions outside of probate, you could choose to use a revocable living trust as the centerpiece of your estate plan.
How a trust can be a solution
People are sometimes wary of trusts because they are afraid of losing control of the assets. In fact, with a revocable living trust, you can act as the trustee while you are alive and well, so you control the actions of the trust. Since the trust is revocable, you can actually dissolve the trust totally if you want to, so there should be no concerns about losing control.
In the trust declaration, you choose a trustee to succeed you after your passing. You leave behind instructions regarding the way that you want the assets to be transferred, and the trustee would follow these instructions. Asset distributions to the beneficiaries could begin shortly after your death, and these distributions would not be subject to the probate process.
If you have questions regarding the Uniform Probate Code or any other probate matters, please contact the experienced attorneys at the Law Offices of Mary A. Miller, P.C. for a consultation. You can contact us either online or by calling us at (914) 939-6565. We are here to help!
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