This article explains how a will is probated in Surrogate’s Court and the advantages of trust planning to (1) protect beneficiaries and (2) avoid court, legal expenses, and objections.

The legal profession loves latin terms. Probate is derived from a latin word that means to test or prove. So, probating a will is the process of submitting a will to the Surrogate’s Court to determine if it is valid.

Initially, a petition is filed with the will, naming the beneficiaries of the will and the close relatives of the decedent. The Court will also request a death certificate, funeral bills, an affidavit of heirship, and sometimes a genealogist report depending on the complexity of the family tree involved. All of these forms must be approved, and it is not unusual for the Court to require editing.

There are downsides to probate. First, close relatives are all notified of the proceeding, and can simply appear to object to the will. They do not have to do file documents or pay fees. They can appear on a citation date and orally object. If objections are made, hearings of the witnesses to the will and the draftsperson are required. If family conflict is an issue, probating a will invites everyone to the proceeding.

A second downside to probate is that the Courts here in New York are busy and the process can take a year or longer. This can require multiple court appearances and the related legal expenses.

A third downside is that most wills do nothing to protect beneficiaries that are incapacitated, receiving government benefits, dealing with bankruptcy or a legal judgment, or facing a future divorce. In these situations, the beneficiaries may be forced to inherit money that will disqualify them from public benefits or immediately be taken by a creditor or divorce proceeding. A will does not provide legacy wealth protection.

Alternatively, a trust does not require judicial intervention and the assets can remain in trust shares, protecting your wealth for future generations. A trust may also contain discretionary language and/or trust protectors to ensure that your assets are not wasted by your beneficiaries.

Trusts are usually less expensive in the long run and can be used to minimize taxes, let you keep some control of your assets, protect wealth for future generations, maintain privacy and are less likely to result in litigation.

If you are interested in an Estate plan, whether it is a will or a trust, please contact Raimond & Staines, LLC. Out of office consultations are available.

305 Broadway, 7th Floor, New York, New York 10007

(212) 884-9636

tim@raimondstaines.com
frank@raimondstaines.com

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