Probate-Law - CHRISTINE THEA RUBINSTEIN Attorney at Law

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 Rubinstein, Zeh & 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 Rubinstein, Zeh and associates about avoiding probate altogether with a properly executed and funded living trust.

Trust vs Wills * Removal 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 Rubinstein, Zeh & 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.

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Property that passes at death through a revocable living trust gets transferred to the trust, administered by a trustee who may then transfer those assets out of the trust directly to the beneficiaries. Therefore avoiding the timely and costly hassle of probate. There may be other costs, such as real estate transfer taxes or fees, depending upon the jurisdiction. A comparison of the costs of probate and those of a living trust can be demonstrated by an attorney at Castiglia-Rubinstein and associates for your family.
When a person dies, his or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate—without leaving a will—the court appoints a Personal Representative to distribute the decedent’s property according to the laws of Descent and Distribution. These laws direct the distribution of assets based on hereditary succession.
As a general rule, a will has no legal effect until it is probated. A will should be probated immediately, and no one has the right to suppress it. The person with possession of a will, usually the personal representative or the decedent’s attorney, must produce it. Statutes impose penalties for concealing or destroying a will or for failing to produce it within a specified time. As opposed to a living trust that can be used and administered while you are still alive. You appoint a trustee in a living trust to make any legal, financial, or health decisions on your behalf for your benefit and the benefit of your estate; while you are still alive. The appointment of a trustee in a living trust will allow your family to control and manage your assets in the event that you become incapacitated temporally or permanently.
Living trusts, in fact, have great value as part of estate planning. A living trust, if properly prepared and administered, can be a very effective tool to manage assets in the event of illness, disability or the effects of aging. In light of the aging population, the use of living trusts to minimize the risk of elder financial abuse and address similar issues, should be an important consideration in any estate plan.
Probate proceedings are usually held in the state in which the decedent had domicile or permanent residence at the time of death. If, however, the decedent owned real property in a another state, the will disposing of these assets must also be probated in that state. To qualify as a will in probate, an instrument must be of testamentary character and comply with all statutory requirements. A document is testamentary when it does not take effect until after the death of the person making it and allows the individual to retain the property under personal control during her or his lifetime. A will that has been properly executed by a competent person, the testator, as required by law is entitled to be probated, even if some of its provisions are invalid, obscure, or cannot be implemented.
This is another reason that a living trust is the better estate planning vehicle because a living trust does not have to be probated, and almost any asset from any state can be put into your living trust. This avoids having the decedents family having to hire an attorney in each state that the decedent had owned property in.
A will made as a result of Fraud or Undue Influence or a will that has been altered so that all its provisions are revoked will be denied probate. If the alteration only revokes certain provisions of the will, the remaining provisions can be admitted to probate.
All separate papers, instruments, or sheets comprising the most recent of a testator’s wills will be admitted to probate. Where a later will does not explicitly revoke all prior wills, two separate and distinct wills can be probated. Probate courts seek to carry out the declared intention of a testator regarding the disposition of property, and they resort to distributing property according to the law of descent and distribution only where no reasonable alternatives exist.
As a general rule, the original document must be presented for probate. Probate of a copy or duplicate of a will is not permitted unless the absence of the original is satisfactorily explained to the court. If a properly proved copy or duplicate of a will that has been lost or destroyed is presented to the court, it may be admitted to probate. Some states have special proceedings to handle such occurrences. A thorough and diligent search for the will is necessary before a copy can be probated as a lost will.
A codicil, which is a supplement to a will, is entitled to be probated together with the will it modifies, if it is properly executed according to statute. If it is complete in itself and can stand as a separate testamentary instrument independent of the will, the codicil alone can be admitted to probate.A codicil that has been subsequently revoked by another codicil is not entitled to probate.
A will made in a foreign language will be admitted to probate if the testator understood what it contained and it otherwise complies with other statutory requirements. A translation usually must accompany the will.

The probate process begins when the personal representative files with the clerk of the probate court a copy of the death certificate along with the will and a petition to admit the will to probate and to grant letters testamentary, which authorize him or her to distribute the estate. Although the personal representative usually files the probate petition, it can be filed by any person who has a pecuniary interest in the will. In states governed by the UPC, the personal representative must elect whether to proceed with formal or informal probate at the time of filing. However, a probate proceeding may be switched from informal to formal during the course of administration, if issues so warrant.
In a formal probate proceeding, a hearing must be held to establish the death of the testator, the residency of the decedent, the genuineness of the will, its conformance with statutory requirements for its execution, and the competency of the testator at the time the will was made. These requirements are usually fulfilled by the attesting witnesses who were present at the time the will was made and who certify that it was properly executed. The number of attesting witnesses is prescribed by law. If fewer than the required number witness a will, it will be declared void, and the testator’s property will pass according to the laws of descent and distribution.
When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to evidence of the genuineness of the signatures and any other proof of execution available. The UPC simplifies witness issues by permitting the admission of “self-authenticating” wills. These wills contain a statement signed by the witnesses that attests to the competency of the testator and other statutory requirements. Self-authentication relieves the witnesses of the burden of appearing in court and the personal representative of costly procedures if the witnesses are unavailable.

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 Rubinstein, Zeh and associates represent your family to litigate a contested will.

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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.
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