Does a Will Need To Be Probated To Transfer Real Estate?
When a person dies, it is expected that their beneficiaries will inherit their estate, including their property, based on the relationship they had. Since real estate is the most dominant estate asset, this usually means that when the person passes on, transfer real estate law will play a significant role in their estate settlement.
Like most other states, New York has its laws guiding real estate transfers. These laws are meant to help in the resolution of contentious matters such as;
- Title or ownership of the property
- Various building codes issues and violations
- Claims against the property. These claims can be in the form of unfinished mortgages or liens that arise from judgments against the decedent, property violations, or unpaid taxes.
- Property line disputes like adverse possession claims or encroachments
As is evident, there are a lot of complications that can arise when settling an estate. If you want the relatives you prefer to inherit your estate after you pass on, it is critical that you involve an experienced estate planning lawyer.
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An Insight Into New York State Probate Rules
You likely already know that you need a will to appropriately pass on your estate to your preferred living relatives when you are deceased. However, just having a will likely is not enough.
New York State probate law directs that only an estate worth more than $30,000 must be probated if there is a will. When there is a will, but the estate is worth less than $30,000, the court can initiate a “small estate proceeding.” An estate lacking a will is not probated but ‘administered.”
Keep in mind that certain assets, such as proceeds of retirement accounts like IRA and 401K, insurance policies, and other accounts with a specified beneficiary, are not put through the probate process.
This means that when the decedent (the person who died) has a will and their estate is valued at more than $30,000, the will has to be submitted to a Surrogate’s Court and be approved for probate. Probate involves proving that the will is legally acceptable (valid). During this process, it must be demonstrated to the court’s satisfaction that the will is the Last Will and Testament of the deceased.
Once the Surrogate (the judge in the Surrogate’s Court) is convinced that the will is valid, the executor named in the will is given the go-ahead to carry out the decedent’s wishes and distribute their estate. The court supervises the estate settlement as outlined.
Executors are often paid a commission, which depends on the estate’s value. Some of the duties of the executor during the estate settlement process are:
- Locating and taking inventory of all your property before placing them under your estate
- Collecting debts owed to your estate
- Paying all your estate’s bills and taxes
- Managing your assets, including making appropriate investments, during the probate proceeding
- Distributing your assets to those you chose and ensuring everyone gets their proper allocation once the probate proceedings conclude
A Case From Queens, New York
Last year, a Queens estate case entitled Matter of Rosenblatt involving estate issues were heard and determined by Queens Surrogate Peter J. Kelly. Since no will was presented for probate, the Queens Public Administrator was picked to be the estate administrator. The Public Administrator sold the decedent’s residential real estate (part of the decedent’s estate) and then settled the decedent’s final account.
However, the grandchild and the spouse, who had moved into the decedent’s estate after her passing, filed an objection to the Public Administrator’s actions in court. They argued that the Public Administrator lacked the authority to sell the real estate since they had the decedent’s will. The Surrogate dismissed their objection because they had not presented the will for probate and allowed the Public Administrator to distribute the real estate sale proceeds.
Do You Need Legal Help From a Brooklyn Estate Planning Attorney?
Our law firm has proven experience handling New York estate planning and probate matters. We will help you create a secure estate plan encompassing a will, power of attorney, advanced health directive, and even living trusts to protect your wealth. Contact us today to learn more about estate planning and probate from our top-notch Brooklyn estate planning attorney.