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Avoiding Probate when Passing on an Estate

Executing a will or estate through probate court can be a costly, time consuming process full of surprises and complex issues. On top of that, the probate process creates a public record of the proceedings that may reveal information individuals wish to keep private, including debts, real estate holdings, and prenuptial agreement agreements.

 

Fortunately, New York probate law gives individuals planning their estate options to avoid this burdensome process by creating living trusts, setting up joint ownership, and various transfer agreements. However, even these options come with various challenges that can complicate what is meant to be a less stressful process.

 

By thinking ahead, weighing options, and speaking to an experienced estate planning attorney, individuals and couples can tailor a plan that best suits their needs and ensures their final wishes are carried out with the greatest benefit to survivors. Here are some common ways to avoid probate court in New York.

 

Creating living trusts

 

New York probate law allows residents to create a living trust capable of bypassing probate court altogether and transfer homes, businesses, bank accounts, cars, and other personal property to beneficiaries. When considering creating a living trust, individuals should understand the law mandates a specific set of steps to put assets under control of the trust.

 

  • Create a trust document – similar to a will and names a successor trustee to oversee the trust upon death
  • Transfer property – You will need to transfer the assets of the trust to yourself
  • Trust control of assets – All assets are now under the trust which you control and will then be dispersed in accordance with your wishes by the successor trustee upon your passing

 

Joint ownership transfers

 

Joint ownership can be a very appropriate option for married couples in New York, especially for real estate and small  businesses. The law recognizes two different types of joint ownership so couples should understand the types of assets each may apply to.

 

  • Joint tenancy – Couples owning and equal share in valuable property like homes, businesses, and vehicles can transfer property from one joint tenant to another without entering probate court
  • Tenancy by the entirety – Allowed only for married couples and applies exclusively to real estate. Can be a good option to help protect assets against creditors upon death

 

Transfer and payment on death

 

New York is one a few states that allow couples to jointly register stocks, bonds, and securities to transfer to beneficiaries. Bank accounts may also be set up to make payment to a beneficiary on death. Does not apply to real estate.

 

Life insurance policies and 401k plans already name beneficies so these types of assets do not need to pass through probate court. Beneficiaries need only provide the necessary paperwork to the insurance companies underwriting the plans.

 

Do you need help avoiding probate court?

 

If you, your spouse, or your family are considering options to avoid probate court and facilitate a smoother dispersal of assets, contact our office to discuss your estate. Our dedicated estate planning attorneys have years of experience helping clients create trusts, estates, and other asset plans.

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