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Probate

"Probate" is the term that describes the court proceeding that follows the death of a person who left a Will, in which the Will is established as valid and an Executor or Executors are appointed for the purpose of administering the decedent�s estate pursuant to the terms of the Will. Generally, the Will is probated in the county where the decedent was domiciled. The act of administering an estate includes many activities, including the collection of the decedent�s assets, payment of debts, expenses and taxes and distribution of property as provided under the terms of the Will. (See "Duties of an Executor" for further details on the administration of an estate.) All assets owned by the decedent are classified as to whether they pass under the terms of the Will ("probate assets") or whether they pass by some other mechanism and not under the terms of the Will ("non-probate assets"). Such non-probate assets are, however, typically part of the decedent�s gross estate for estate tax purposes and subject to federal and state estate tax. They include the following:

� Assets held with another person as joint tenants with right of survivorship - upon death, the surviving joint tenant automatically becomes the sole owner by operation of law.
� Totten trust accounts � bank accounts that name a beneficiary to take upon the death of the account owner.
� Insurance proceeds payable to a named beneficiary other than the probate estate.
� Real estate or other assets held by decedent and spouse as tenants by the entirety.
� Assets placed in a revocable trust, as well as other types of trusts (i.e. grantor retained annuity trusts), that do not pour-over into the probate estate at death.
� Pension, profit sharing or other employee benefit plan proceeds payable to a named beneficiary other than the probate estate.
� U.S. Savings Bonds "payable on death" to a named beneficiary other than the probate estate.

Probate Costs

Many states, like New York, have schedules, fixed by statute, of filing fees and executor�s commissions. The maximum fee to file a Will for probate in New York is $1,250 for estates of $500,000 or more. Executor�s commissions in New York are based on the size of the commissionable estate and are computed as follows: 5% of the first $100,000; 4% on the next $200,000; 3% on the next $700,000; 2�% on the next $4,000,000; and 2% on all sums above $5,000,000. In addition, "reasonable" attorney�s fees may be paid in connection with representing the Executor of an estate.

Length of Time to Probate Will vs. Estate Administration

If there are no complications, such as objections to the Will or an inability to locate heirs, a Will can be admitted to probate in New York within two to four weeks after death and "Letters Testamentary" are thereafter issued naming the Executor or Executors. If there will be a delay in probate, the Court upon application can grant "Preliminary Letters Testamentary" within one or two weeks after death. With these, an Executor can take all actions that he or she could otherwise with full Letters Testamentary, except he or she cannot make distributions to beneficiaries under the Will. If a decedent dies owning real property or tangible personal property in a jurisdiction other than that in which original probate of the Will is sought and granted, then ancillary probate of the Will in each such additional jurisdiction must follow original probate in order to qualify the Executor and make the terms of the Will effective there, as well. Note that "probate" is one of the initial steps taken after someone dies with a Will. The entire series of activities taken after someone dies is more appropriately referred to as "estate administration". In summary, the first step in administering an estate is to locate the Will of the decedent and probate the Will in the county where the decedent was domiciled. Once the Will is admitted to probate, the nominated executor under the Will will be appointed and the process of the administration of the estate will officially begin. If any delay in granting probate is anticipated, Preliminary Letters Testamentary can be sought.

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