How Do I Know If I Have to Probate the Will?

Q: My loved one recently passed away and I am the nominated executor in the Will. How do I know if I have to probate the Will?

A: The answer to this question depends on how the individual’s assets are titled at the time of death. Generally, assets that are titled in the individual’s name alone at the time of death require the Will to be probated in Surrogate’s Court before those assets can be collected by the executor and distributed according to the provisions in the Will. However, some assets may be collected by utilizing an affidavit, a form, or a more simplified process in Surrogate’s Court, depending on the circumstances and value. There may also be special circumstances if the only asset is real property.

Assets that are owned by the individual which designate a beneficiary other than the estate or contain a transfer on death or payable on death designation can be collected by the named beneficiary directly without the need to probate. Examples of assets that typically pass this way are IRAs, 401ks and life insurance. If no beneficiary is named or if the named beneficiary predeceased, probate may be required depending upon whether there is a contingent beneficiary or default in place.

Assets that are owned by the individual jointly with another person generally can be collected by the joint owner directly without the need to probate. However, some accounts should be reviewed to determine whether the intent was for the joint owner to inherit the account or whether it was merely a convenience account, such as in the case of an individual naming one child as joint owner on his or her bank account to assist with bill payment. Additionally, deeds to real property and stock certificates for cooperative apartments should be reviewed by an attorney to determine ownership of the property at death, even when husband and wife are joint owners.

Assets owned by a trust that the individual created during life generally pass according to the trust document and can be distributed by the trustee without the need for probate. An exception may arise when the individual exercised a testamentary power of appointment contained in the trust.

There may be other reasons to probate a Will. It is best to discuss your particular situation with an attorney in order to determine how to proceed after the death of a loved one.

– Melissa Doris, Esq. and Nancy Burner, Esq.

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