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What is Probate?

 

In short probate is the court process by which a Will is proved valid or invalid. Probate is the legal process wherein the estate of a decedent is administered.

noun: probate. It is the official proving of a will. “the will was in probate”

With a will or without a will; any assets owned by a decedent have to go through the process of probate. Probate is the process of transferring the assets of the decedent to the living family members of the decedent. Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries. The attorneys at the law offices of Castiglia-Rubinstein & Associates can help your family navigate through the process of probate, and make it easily manageable in your time of need. Our attorneys are not only trained in handling simple estate probate matters, we take care of complex estate litigation in the event of a contest or fraud in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York. The laws of each state vary, so it is a good idea to consult an attorney to determine whether the fiduciary must be bonded (a requirement that may have been waived in the will) and what reports must be prepared. Most probate proceedings can be expensive and the process prolonged in the event of a contest or other unforeseen problems. Speak with one of the attorneys at the law offices of Castiglia-Rubinstein about avoiding probate altogether with a properly executed and funded living trust.

Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers * Guardianship Litigation
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts

With a will, during the probate process, the basic job of administration and accounting for assets must be done whether the estate is handled by an executor in probate or whether probate is avoided because all assets were transferred to a living trust during lifetime or jointly owned. Many states have simplified or streamlined their probate processes over the years. In such states, there is now less reason to use probate avoidance techniques unless there are other valid reasons to continue to minimize probate. In planning your estate, more important than minimizing probate is minimizing the real issues that can make probate difficult, such as lawsuits by heirs. This can be accomplished with a properly funded living trust. At The Law Office of Castiglia-Rubinstein & Associates, our lawyer implements estate planning strategies for a diverse clientele. Based in Melville, NY, we serve clients across Long Island, Nassau, Suffolk, Queens, Brooklyn Kings County, Westchester, Bronx, Richmond County Manhattan and beyond.

Should You Avoid Probate?

The living trust is the vehicle that allows you to “avoid probate” upon your death. Probate is the court-supervised process of administering your estate and transferring your property at death pursuant to the terms of your will. Probate will cost your family money in court and state filing fees, and attorney fees. During the probated process you heirs will be locked out of the control of assets until the court has appointed an executor or executrix over the estate of the decedent. During this time you will not be able to have any control over the decedents assets. For example your family will not be able to evict tenants in real estate owned by the decedent or sell or trade stocks or bonds owned by the decedent. As you can see you can be locked out of everything that the decedent had controlled.

Proceedings

A probate proceeding may involve either formal or informal procedures. Traditionally, probate proceedings are governed by formal procedures that required the probate court to hold hearings and issue orders involving routine matters. Consequently, the legal costs of probating an estate could be substantial.

If no one objects to the will at the hearing, it will be admitted to probate.

Informal probate proceedings generally do not require a hearing. The personal representative files the death certificate and will, along with a petition to admit the will under informal probate. The clerk of probate court reviews the submissions and recommends to the court that the will be probated. Once the court issues the order for informal probate, the personal representative files a series of forms that demonstrate that notice has been given to all interested parties about the probate, the decedent’s creditors have been paid, and the estate’s assets have been collected, appraised, and distributed to the designated heirs.

Contested Probate Proceedings

The probate of a will can be opposed or contested on the ground that the instrument is void because of the testamentary incapacity of the testator at the time the will was made, the failure to comply with the formalities required by law, or any matter sufficient to show the nonexistence of a valid will. When a will is contested, formal proceedings are required.
Let the law offices of Castiglia Rubinstein represent your family to litigate a contested will.

Agreement not to Contest

A testator can enter into a contract with her or his heirs in which they agree not to contest a will. If the contract is supported by consideration, something of value, and the agreement is otherwise valid, the heirs will be prevented from contesting the will. The beneficiaries under a will and the heirs can enter into a valid contract not to contest a will. States vary as to the remedies a party to an agreement not to contest a will has upon breach. These include an Injunction against the prosecution of the contest, an action at law for damages, or a defense to the contest.

Guardianship of Minor Children

Wills often contain instructions on who should be appointed legal guardian of the decedent’s minor children. The probate court may investigate the qualifications of the proposed guardian before granting an order of appointment. When a will does not contain a guardianship provision, the court itself must determine, based on the best interests of the children, who should be appointed guardian.

Right of Review

A right of appeal from a probate decree is given to any person who would suffer a direct financial loss as a result of the decree. The appellate court is restricted to a consideration of the questions presented to and determined by the lower court. An issue not presented to the probate court usually will not be considered.
We are dedicated to your success — so contact us. Speak with one of our knowledgeable Long Island estate planning litigation, will contest litigation attorneys today from wherever you are in New York in Nassau and Suffolk, Brooklyn, Kings and Queens Counties, on Long Island and all New York City boroughs including Bronx, Westchester, Richmond County, and Manhattan.

Call 800-960-1529  today.

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You should be prepared if a loved is going into a nursing home or already resides in a nursing home. You should know you have certain legal rights and must be very selective of the Lawyer or Law Firm that you chose to represent you.
Have an Attorney council you on the Right Decision for You.

 

Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers * Guardianship Litigation
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts

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