Nolfo McKenna – Probate in New York: Exposing the Myths Part I – Albany, NY

Many people in New York cringe when they hear the word PROBATE. Wills, court, inheritance, will contests and lawyers are only some of the negative words often associated with probate, which can often be a relatively simple court process. Many of the probate proceedings I have submitted in Albany NY, Rensselaer NY, Saratoga NY and Schenectady County Surrogate’s Court have been approved relatively quickly. Probate is basically just the process the Surrogate’s Court follows to prove the validity of the will being offered by the Executor. The Executor is the person named in the will to represent the estate. If the person making the will, often called the Testator, is of sound mind and the will is signed and executed properly, and the beneficiaries who would inherit from the estate are agreeable, the probate process should proceed without problems in Albany, Saratoga, Schenectady and Rensselaer County, and the Executor should be appointed in a timely manner.

Often, if the will was executed by a person who is survived by a spouse, and the spouse is either a joint owner or a beneficiary on most of their assets, the probate and estate may be relatively small and simple. If an asset passes outside the probate estate because there is another owner listed, that asset is not a probate asset and not part of the probate proceeding, although it may be considered part of the estate for estate and inheritance tax. Such asset is considered passed to the beneficiary by operation of law.

Assuming there are assets in the Testator’s name alone, without a joint account holder or named beneficiary, those assets are called probate assets. Probate assets can include real property, bank accounts, investment accounts, antiques and collections, automobiles and other property. The total of such assets are called the probate estate.

The probate petition will include these assets, and will also include the names and addresses of all those who would inherit from the Testator, generally close family members. The probate petition may also include any charities listed in the will, and any people outside the family who are beneficiaries and would receive an inheritance under the will.

Where a will is offered for probate largely depends on the county of domicile of the Testator. If the Testator lived all their life in Albany County, and owned real property in Albany County, but temporarily moved to an assisted living facility in Rensselaer County for a few months prior to their death, the will would most likely be offered for probate in Albany County Surrogate’s Court.