The Probate Process Is a Journey - Start off Right: A Guide for Executors and Administrators

The probate process can often seem intimidating, especially for first-time executors or administrators who suddenly find themselves responsible for managing a loved one’s estate. So, how do we make it as seamless as possible and a bit less stressful? Here’s our step-by-step look at the process referred to generally as “probate”, with our top practical tips for each phase to help you navigate it with confidence.

Step 1: Speak with a Probate Attorney

So, it all starts… Someone you love passes away, and you realize that you had agreed years ago to be their executor.  Or, maybe you are just finding out upon the person passing that you have been nominated in a will to act as an executor.  Or, maybe the person who has passed, had multiple conflicting wills with different executor nominations.  Or, maybe the person who passed did not have a will.  My goodness!  These kinds of initial questions can lead to more questions.  With all the possibilities, you may not be sure exactly what it all means.  So, first thing’s first: We might be a tad biased, but we firmly believe starting this whole process with an experienced attorney, especially one practicing in the appropriate county of the state in which the proceeding will occur.  A probate attorney can guide you through all of the complexities, from filing paperwork to managing legal requirements and assessing matters that will affect the entire estate administration.  We work with people in these scenarios from the get-go!  Once time has passed and certain actions and activities have occurred, it can become harder for us to get involved.  We need to “retrace” all that has happened to the extent we feel comfortable becoming involved.  The probate process needs to be handled with care and this means proper understandings and actions from the beginning.  For some information on probate, check out our website.  Remember, every estate is different and it’s about establishing a good working team from the beginning for a better process and less stress! 

Tips for a Smooth Start:

• Choose an Attorney with Probate Expertise: You wouldn’t want a podiatrist doing your heart surgery, and similarly you do not want just any attorney helping you with probate. There are too many nuances, too many laws, and too many details that can be easily overlooked by someone who isn’t looking at probate matters everyday. If you’re in Erie County, New York or the Western New York area (where we practice), finding an attorney in these areas who concentrates in probate and estate law will be critical for getting started on the right foot. Local knowledge and help is key and there are any number of other professionals and helpers that we can introduce clients to, such as realtors, accountants, clean-out companies and so on.  As well, there are always going to be nuances in regard to probate requirements and other estate matters that are particular to the area.
• Ask Questions Early: Don’t hesitate to ask questions - in fact, make a list for your initial consultation that is written down and not just in your head! Your can discuss your specific situation and start to actually understand what factors are involved.  This kind of discussion is eye-opening as people realize various items about the process and what will be required and needed moving forward.  As well, knowing some general information on timelines can help you understand what to expect moving forward.  Setting realistic expectations can only help with the entire process.
• Gather Essential Documents: Have the will, death certificate, information about people and any other financial documents you feel are relevant ready for the attorney. These documents may not be readily available, especially for your initial consultation, but, whatever you may be able to bring with you to your appointment can be helpful.  Make sure you do not do anything to the will to change how it was when it was located, if you do locate one.  Wills can be located in any number of places, including a person’s home, Surrogate’s Court, with an attorney, with the nominated executor and so on.  The attorney will have follow-up questions, but starting with what you can is helpful.  You are looking to gather information about people as well as gathering various documents which will speed up the initial process.  The attorney will need various information to get initial paperwork started.  This initial paperwork, of course, needs to be correct!  We don’t want to have to amend our paperwork, or worse, yet, have a defective estate proceeding because the initial information was incorrect.  Just be prepared to being as helpful as possible as you’re on the same team with your attorney to start things off correctly! 

Step 2: Establishing Your Attorney and Next Steps (including filing a Petition)

Entering into an engagement with an attorney can take a formal engagement letter and a retainer.  It’s part of moving forward and an important one!  You’re establishing a team that needs to be on the same page for a long period of time.  Once you have an attorney all set and ready to move forward, the next steps are all about working with him/her to provide help in gathering all the necessary information and paperwork to open an estate in Surrogate’s Court.  This is dependent upon the facts and circumstances at the time.  So much can come into play that you really want to work with your attorney so that, ultimately, the filings with Surrogate’s Court have everything needed.  Sometimes, this is not possible and there will be follow-up which is another reason why you want to establish a good team that communicates well with each other right from the get go.  There may be a small estate proceeding to handle matters.  Or, there may be a need for a full probate or administration proceeding.  A probate or administration proceeding includes a petition where the petitioner requests Surrogate’s Court to appoint an executor (where there is a will) or an administrator (where there is no will) to handle the estate.  Establishing what is called “jurisdiction” is essential.  This means filing the petition with the necessary papers in the county where the decedent was “domiciled” which can be more quite nuanced.  And, it means obtaining “personal jurisdiction” over necessary parties (even when there is a will).  This petition is the official request to “open” the estate through Surrogate’s Court.  Each estate is different in what needs to be in the petition and the documents to include along with the petition.  There are many variables!  This process starts “probate” which is referred to, generally, as the stages you will need to go through for the entire estate matter.  However, “probate” technically means that Surrogate’s Court has found a will to be the decedent’s last will and testament and that it is valid.  Again, where the decedent passed with a will, the nominated executor who successfully petitions Surrogate’s Court to be appointed, does indeed have the will deemed valid and does indeed become officially appointed by the Court as the executor.  Where there is no will, there will be a person filing a petition seeking appointment as administrator.  There is a pecking order in New York State law as to who may petition the Court to ask to be appointed as an administrator. 

Tips for a Smooth Petition Filing:

• Double-Check the Petition: Working with your attorney, ensure all required information is accurate and complete before submitting (psst! That teamwork with your attorney is critical!!) Even minor errors in this paperwork can delay the process.
• Provide Clear Information for Parties: Ensure your petition has current information for all involved parties so that further complications do not unfold.
• Prepare for Fees: Be prepared for court fees associated with filing documents with Surrogate’s Court, as these will be required upfront.

Step 3: Obtain Necessary Jurisdiction over Heirs and Notify Other Parties

The petition may have other documents, such as Waivers and Consents from next-of-kin, that establish “personal jurisdiction” over necessary parties.  If not, there may be a need to have the Court issue a “citation” which then must be served on necessary parties.  There could also be separate notice requirements for others, such as beneficiaries and fiduciaries, who are not also next-of-kin or petitioners.  These are just a few ways in which the initial steps affect the next steps.  Your attorney will work through the various requirements considering the facts and circumstances.  But, just note that there can be various requirements where people, such as heirs, beneficiaries, and interested parties need to be incorporated into the proceeding.  This can even include Surrogate’s Court appointing an attorney called a “Guardian ad Litem” to step in and represent an individual who cannot represent his/her own interests for any number of reasons.  The whole idea is that for the initial proceeding to be solid and not challenged later on down the road, the right people who could have a legal stake in the proceeding need to be part of it. 

Tips for Initial Stages:

• Strategy: In the beginning, there will be a need to assess the overall picture of the estate and how best to handle the initial phases.  There can be complications stemming from people, the will(s), assets, debts, business interests and so on.  For example, a will done by a person without an attorney typically has issues that can cause problems right away.  Another example, which often comes into play as a problem from the beginning is not being in a position to obtain necessary information on next of kin.  Sometimes, there are estranged spouses, children who may have been “adopted out”, estranged next-of-kin where information is unknown, predeceased next-of-kin whose children then come into play and so on!  Roadblocks need to be assessed with potential ways to overcome them, as soon as possible. 
• Determining How to Send Documents: In the beginning, there may be a need to send documents to various parties.  There may also be a need to serve parties with a “citation”.  You’ll work with your attorney on how this should be handled.  It’s so important to establish correct information for people, including current legal names and addresses, to help here.  There can be reasons to send documents via certified mail or other ways.  The whole idea is to provide efficient but effective ways to ensure necessary people are receiving documents to prevent problems and disputes later on.  Sometimes, even initial documentation on handling certain items and communicating with parties can go along way to helping in what can become a difficult early start to the process.  As we all know, sometimes families don’t always get along and establishing how certain communications will be made can be protective for all involved! 
• Keep the Lines of Communication Strong: Life gets busy and it’s easy, under any circumstances, to forget to handle or respond to an email or other request.  Being part of a team effort means communicating even just to say, you’ve received an email or etc. and will respond soon.  Keeping current with everything takes diligent efforts.  As well, an executor or administrator will want to start keeping track of information and documents to stay organized!  Even having folders to hold documents, information and notes all in one place can go along way to staying organized and remembering what next needs to be done.  Keeping things top-of-mind by being able to easily refer to items to do, emails to review, documents to keep, and so on is a great way to make the whole process a bit smoother!  Your attorney may also have a “client portal” to keep access to communications, documents and events in an easily accessible manner. 
• Be Transparent: Clear, open communication with people, from your attorney, to heirs and beneficiaries can prevent misunderstandings and foster a smoother process.  You never want to be accused of holding on to essential information or keeping facts hidden or not being forthright.  This is all part of the understanding you will have with your attorney.

Step 4: Will Validation or Next-of-Kin Established Where There is No Will

In this goal in the process, where there is a will, Surrogate’s Court verifies that the will offered for probate is the decedent’s valid last will and testament. This includes Surrogate’s Court issuing a decree which will have language ordering that the will is accepted as the decedent’s last will and testament.  To get this point can be quite complicated!  It involves the will along with other documents and parties being involved, such as affidavits, waivers and consents, notices and so on.  The will may appear to be valid “on its face” (where the will was attorney prepared and executed) or not, there could be incapacitated individuals, unknown individuals, individuals whose whereabouts are unknown, minor children, incarcerated individuals, charities as beneficiaries, and so.  The Attorney General or Public Administrator may need to be a part of the proceeding to open the estate.  As well, an attorney may be appointed by the court, called a Guardian ad Litem, to act on behalf of individuals who cannot represent themselves.  Where there is no will, Surrogate’s Court verifies that the person who has a statutory right to act is the one petitioning to act or has renounced his/her right to act, if another person is petitioning to act.  It is essential that the pecking order in New York State law is followed because the person passed without a will and, therefore, the right of a person to act stems from this pecking order.

Tips for Smooth Will Validation or Establishing the Right to Act as Administrator:

• Work With Your Attorney: Your attorney will review the will and what may be necessary.  As well, where there is no will, your attorney will review with you the pecking order provided by New York State law.  There are any number of variables here.  For a will, this could include tracking down the witnesses if self-providing affidavits were not executed at the time the will was executed.  Where there is no will, the appropriate pecking order and potential documents will be evaluated.  If waivers and consents are not obtained, there can be further requirements down the road.  This is, again, another reason why starting with an attorney and correct information right from the get-go is so important.  Proving information regarding people, such as next-of-kin and beneficiaries cannot be underestimated!  When you’re able to provide any helpful information, this can make things so much smoother here.  Sometimes, a lack of information or correct information can completely stall the process or cause a defective proceeding! 
• Provide Any Further Information: Sometimes initial information is wrong or there is a further need to fill in gaps, even after the initial petition is filed. Talking with various family members to obtain any further necessary information can greatly help your attorney take whatever steps are needed when this happens.  Be willing to help, as needed! 
• Address Questions Head-On: If any family members questions the will’s validity or the pecking order of who can act where there is no will, discuss this with your attorney.  Being informed about the possibilities will help with realistic expectations.  Not all variables can be controlled but communication can help with realistic expectations.  For example, a will dispute could lead to a hearing of the will witnesses which can lead to formal objections against the will and so on.  This could take a long time to unfold!

Step 5: Taking Inventory of Assets

A key part of the process is identifying and valuing all assets in the estate, from bank accounts to real estate and so on. There are two parts to this - one is that the fiduciary (meaning executor or administrator) will be working on identifying, marshaling and handling all estate assets, as appropriate - and the other is that an inventory of assets will eventually need to be filed with Surrogate’s Court.   

Tips to Help Understand What Assets are a Part of the Estate:

• Work with Your Attorney on How the Decedent’s Documents and Mail Are Being Collected and Organized: This should be discussed with your attorney as gaining access to documents without causing further problems needs to be assessed.  It will depend on where you are at in the stage of probate and if you have legal authority to act on behalf of the estate.  Eventually, it will obviously be critical to gather all information and documents on any estate assets, such as bank statements, deeds and title documents, investment accounts, life insurance, retirement accounts, business interests (including information about the business itself) and so on.  Continuing to keep on top of assets and staying organized will help save time in the long run.
• Use Professional Appraisers: For items of significant value (like real estate or collectibles), a professional appraisal may be helpful to ensure accurate valuations and reduce disputes about the potential value of such property during the process.
• Communicate with Beneficiaries: Sharing updates with interested parties, from next-of-kin to beneficiaries (depending on the situation and timing) can keep everyone informed and prevent misunderstandings later. Good communication is at the heart of every smooth process involving probate matters!

Step 6: Paying Debts and Taxes

The estate is responsible for handling certain debts and taxes, including Federal and New York personal income taxes owed.  Most estates do not have estate tax concerns, but if this type of tax were a concern, your attorney will work closely with you as estate tax returns will need to filed.  In any event, this is another area that needs to be handled appropriately between the fiduciary and the attorney, otherwise, there could be problems later on . . . including personal liability to people and liens on property!  This is the last thing one would want in handling an estate.

Tips for Smooth Debt and Tax Settlement:

• Prioritize Income Taxes Due: Work with your attorney to determine potential Federal and New York State taxes due.  Sometimes, there can be back filings and/or taxes due for personal income taxes.  As well, final personal income taxes need to be filed, as appropriate.  Staying organized here can help avoid last minute scrambling to get documents together.
• Handle Other Tax Filings: Whether it’s estate tax returns, fiduciary income tax returns or business income tax returns, the fiduciary (ie: the executor or administrator) needs to assess how the estate will handle these filings, and, ensure they are made in a timely fashion with taxes paid to avoid interest and penalties, if at all possible.
• Work With and Negotiate with Creditors if Necessary: All assets and associated debts should be evaluated as soon as possible.  It’s important to understand what debts need to be paid and/or what can cause problems when estate assets are sold or distributed.  For example, real estate taxes could be accruing in a substantial manner and be a real surprise when it comes to sell the property.  Another example is that business loans may have been personally guaranteed by the decedent.  And, so on!  As with other areas of the estate administration process, handling estate debts can be an issue with various complications.  It’s possible that certain creditors may accept partial payment and where there is a “deficit estate” creditors have to be dealt with in an overall manner sometimes requiring a “judicial settlement”. Working with an attorney can be incredibly helpful with all of this!
• Set Aside Funds for Taxes: Ensure there are enough funds in the estate to cover any taxes due. Taxes may take priority over other debts and distributions to heirs, but, of course, you don’t want any unpleasant surprises!  Handling the estate is a job! Make sure you are prepared to deal with these kinds of matters. 

Step 7: Distributing Assets to Beneficiaries

Once debts, taxes are all other matters are settled, (finally!) you will work with your attorney on final matters, including more paperwork to be prepared and handled and then, eventually, distribute funds/assets to the beneficiaries!  As is the case throughout the probate process, it’s a matter of working with your attorney as determining when it’s time to make any kind of distributions really depends on each estate.  When you looking at distributions, besides all the other factors that can come into play, the will governs who may receive what, or if there is no will, then New York State law will govern who may receive what.  Complications can occur.

Tips for Smooth Endings:

• Work on Final Papers with Your Attorney: We know this may sound a tad bit overemphasized and boring . . .  but you want to work with your attorney on what may be needed at this phase depending on the circumstances.  An accounting will provide for what has transpired over the course of the estate administration.  This will be used to provide various individuals with what the fiduciary has done in regard to the estate administration.  There will be receipt and release documents as well.  Further, there will be documents, such as an Informal Closing Statement, or potentially even a Petition for Judicial Settlement, to handle the end of the estate.
• Filing Fiduciary Income Tax Returns: Your attorney will work with an accountant in regard to these filings and there could be any number of such returns needed, depending on the estate, and ultimately, final fiduciary income tax returns may be needed.
• Will or No Will Provides How Assets/Property Distribution (eventually!): Assets/property will (eventually and hopefully) be distributed.  There can be reasons why an estate can never get to this point.  There can also be reasons why an estate is a deficit estate in that there are no remaining assets to distribute due to debts, creditors and/or expenses. 
• Stay in Contact with Necessary Parties: We stress constant communication quite a bit, and it is also key in this step - keep interested parties such as beneficiaries informed of the timeline and next steps to prevent concerns or confusion.

Step 8: Closing the Estate

There can be a period where there is a mix of working on closing matters while gearing up to “close” the estate with the court. Sometimes, an estate is settled informally where the court does not formally approve of matters.  Once the creditor period has run, an executor or administrator can take actions to essentially informally “close” the estate by filing documents with Surrogate’s Court.  If there is no way to “informally close” the estate, other options will be considered.

Tips for Closing Matters:

• Double-Check All Records: Ensure various items in the estate have been attended to - this can include that certain bills have been paid, taxes filings made, assets marshaled and administered, and so on.  Sometimes, something needs to be looked at again or an initial decision has to be changed.  It happens!  That’s why it’s so important to take a thorough review of all that has occurred and double check what else may be needed!  We want to sleep well after we are done with the estate!
• Work with Your Attorney: Taking the time to review and discuss everything with your attorney is going to make you both feel all is in order, and can prevent any last-minute hiccups or problems down the road.

The estate administration process, generally referred to as “probate” has the potential to be drawn-out, complex, and incredibly stressful for an executor, administrator, or any family involved. If you’re local to Erie County, Niagara County or the Western New York area, we love our local community and helping our clients take a deep breath, stay organized, and work through this whole process with a little less stress. If you’re ready to learn more about this process or have questions about any of these steps, feel free to reach out to us or explore our Probate page on our website  for more information. We look forward to seeing you in the office soon!