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Frequently Asked Questions About Probate

We have compiled a small list of commonly asked questions related to subject of probate law. If you would like further clarification regarding any of these questions, or if you would like to discuss your own particular situation, please call 518-392-2555 or email us.

Can I prevent beneficiaries from contesting my Will?

You can include a no contest clause (also known as an In Terrorem clause) as a part of your Will. This provision terminates the interests of any beneficiary who contests the Will.

Do I need a Trust?

This is a common question and can be complicated to answer. It requires an in-depth review of many factors, including a person’s assets, current estate tax laws, residency status, and location of their real and personal property. A Trust can save time and money in handling the distribution of a person’s estate. However, the cost of establishing a Trust and retitling assets may exceed these cost savings. It is important to review all of your options with an attorney prior to deciding on whether or not to add a Trust to your estate plan.

Do I need a Will?

If you die a resident of the New York State without a Will, your property will pass as directed by New York law. If you own certain property, such as real estate, located in another state or country and you have no Will, the laws of that jurisdiction will govern any such property. Laws regarding heirship can be confusing. Having a clear and concise Will that leaves your property to named beneficiaries will make it easier and more cost effective to administer your estate.

Does an Executor get paid?

After the administration of the estate is complete, an Executor is entitled to a commission. The amount of the commission is calculated as a percentage of the estate’s total value, with the percentage of the commission decreasing as the estate value increases.

How do I revoke my Will?

In New York State, a Will can be revoked by properly executing a new Will or by a physical act such as burning, tearing or cutting the Will.

What happens if certain property left under a Will is no longer owned at death?

When an asset that is left to a beneficiary under a Will is not owned by the decedent at the time of death, the gift is said to have adeemed and that particular bequest is revoked.

What is a Health Care Proxy?

A Health Care Proxy is a form of advance directive that designates someone to make medical decisions for you in the event that you are unable to make them for yourself. It is also referred to as a Medical Power of Attorney.

What is a Power of Attorney?

A Power of Attorney is a form of advance directive that designates someone to make decisions for you (except medical decisions) in the event that you are unable to make these decisions for yourself.

What is probate?

Probate (from the Latin word “Probatum” – meaning “a thing proved”) is the judicial process whereby the validity of a Will is established and the Executor named in the Will is appointed by the Court. The Court appointment is referred to as Letters Testamentary and a Certificate of Letters is issued by the Court giving the Executor authority to deal with assets in the decedent’s name.

Who is notified when a Will is probated?

All of the decedent’s heirs will be notified of the proceeding, together with all beneficiaries and contingent Executors and Trustees named in the Will.