Wills Do Not Avoid Probate

We are frequently asked whether having a Will avoids probate. Actually, the opposite is true. If a Will is the foundation of your estate plan, a probate proceeding is required after your death in order to retitle the assets that you owned prior to your death.

The purpose of the probate proceeding is to validate the Will. It is the job of the Surrogate, the Judge who presides over the Surrogate’s Court, to ensure that the Will that is presented to the Court was the last Will, that it was executed in accordance with all of the formalities required under the laws of our state and that the person who executed it did so voluntarily and of their own free will. Once the Judge is satisfied with the Will itself, the appointment of the executor, the person who was named to manage the estate, is reviewed and approved – assuming that he or she is available, willing and able to serve in that role and has not been convicted of a crime. If the Court believes that the executor can serve and is qualified to do so, it will issue a document called “Letters Testamentary.” If there was no Will, the document issued by the Surrogate’s Court is called “Letters of Administration.” This document is issued following what is referred to as an administration proceeding.

For purposes of illustration, would a bank close an account belonging to someone other than you just because you came into the bank holding a death certificate for the account owner and a Will that named you as the beneficiary of the account? Of course not. To protect itself against possible claims of others, the bank would require you to present the official Court document, Letters Testamentary or Letters of Administration.

Apart from the cost and delay associated with a probate or administration proceeding, the public nature of the proceeding is often quite distressing. Everything in the Court’s file, including the names and addresses of your closest family members and beneficiaries and a list of your assets and their values, is a public record. This information is accessible to the general public and can be used to contact your family members, for solicitations regarding estate property and sometimes for other reasons.

Your decision as to the best and most efficient mechanism for disposing of your assets after your death is a personal one that should only be made after consultation with an experienced and qualified attorney. Let Berwitz & DiTata LLP help you!