In reality, things don't work this way. When someone passes away in possession of personal property that is being distributed through the terms of a last will, the will must be admitted to probate. Learn more about New Yor probate in this presentation.

1. New York Probate: Can It Be Avoided? www.myestateplan.com 1
NEW YORK
PROBATE:
CAN IT BE AVOIDED?
“In reality, things don't work this way. When someone
passes away in possession of personal property that
is being distributed through the terms of a last will,
the will must be admitted to probate.”
MARK S. EGHRARI
NEW YORK ESTATE PLANNING ATTORNEY

2. New York Probate: Can It Be Avoided? www.myestateplan.com 2
You maybe under the impressionthat a last will can facilitatea very quickand
efficient transfer of financialassetsafter you passaway. The executor simply
follows the instructions, and thepropertyis distributedimmediatelyafter the
funeral, right?
In reality, thingsdon't work thisway. When someone passes awayin possession
of personalpropertythat is being distributedthrough thetermsof a last will, the
will must be admittedtoprobate.
LEGAL PROCESS
Probateisa legal process. In the stateof New York, the Surrogate'sCourt handles
probatematters. Theexecutor that you namein the last will would conduct the
businessof the estate, but the administrationofthe estatewould be supervised by
the court.

3. New York Probate: Can It Be Avoided? www.myestateplan.com 3
On the one hand, probateprovides certainprotections, and the stateof New York
does everything possible to providea streamlined process. At thesame time,
there aresome thingsabout probatethat arenot going to be well received by the
heirs to theestate.
Whilethe process is underway, the people who are named in the will do not
receivetheir inheritances. Each jurisdictionisa bit different, but in general, a
straightforward, simplecasewill take perhapsnine monthsto a year.
There arecomplicated casesinvolving a great dealof propertyand/or
disagreementsamong interestedpartiesthat canbeheld up in probatefor
multipleyears.
Waiting for aninheritancecanbea mere inconveniencefor some people, but
there areothers who may really need the money. The timelag can cause
hardshipsfor people who may have been depending on the decedent for day-to-
day support.
Expenses are another factor. Probateexpensescanadd up to consumea
noticeableportionof the estate. The money that is spent during probatecould
have otherwisegone to the heirs.
Lastly, there is a loss of privacywhen probateis a factor. Becauseprobateisa
public proceeding, anyonewho is interested could accessprobaterecords.
Throughout your life, you probablyconduct your financialaffairsinprivate. If
you want to givesomeone money, you don't make that informationavailableto
the generalpublic.

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Estatematterscanbe sensitive, and confidentialitycanprevent acrimonyamong
extended familymembers. Unfortunately, confidentialityislost when your estate
passes through probate.
AVOIDING PROBATE
Now that we have explained why you may want to avoid probate, we canlook at
the questionof probateavoidance. It is possible to facilitatethetransfer ofyour
monetaryassetsoutsideof the processof probate.
There arenumerous different optionsavailableto you if you want to avoid
probate. Theoptimalcourseof actionwill vary depending on the circumstances.
If you have estatetax concerns, you could potentiallymitigateyour exposure
while you simultaneously avoid probatethrough thecreationofan irrevocable
trust of some kind. These trustsalso protect assetsfrom creditorsand claimants
seeking redress.
Those who are not concerned about theestatetax could use a revocable living
trust to avoid probate.
REVOCABLE LIVING TRUSTS
Revocable living trustsare very popular among those who areseeking probate
avoidancestrategies. With thistypeof trust, you do not lose control of the assets
while you are living. You canact as the trusteeinitially, so you control the actions
of thetrust. You canalso makeyourself theprimarybeneficiaryat first, so you
cantake monetarydistributionsfrom thetrust.

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When you look at thename of the vehicle, you see that it is in fact revocable. If
you wereto decidethat you do not want the trust anymore, you could revoke or
rescind it. The trust would no longer exist, and the propertythat it contained
would once againbecomeyour direct personalproperty.
To facilitatefutureasset transfers, you name a successor trusteeand successor
beneficiariestoassumetheseroles after your passing. When you createthe trust
agreement, you leave instructionsthat thetrusteemust follow. After you die, the
trusteewill distributemonetaryresourcestothe beneficiariesaccording toyour
wishes.
These distributionswould not be subject tothe processof probate. As a result,
the heirsto the estatewould beginto receive their inheritancesina timely and
efficient manner.
BEWARE OF “EASY ANSWERS”
We must point out the fact that thereareother ways to avoid probatethat are
sometimeslooked upon by theuninitiated as“easyanswers.” These would
includejoint tenancyand payableon death accounts.
There arevariousdifferent drawbacksthat goalong with these notions. You may
want to seek out professionalguidancebeforeyou buy into any shortcuts.
CONCLUSION
Probateisthe legal process of estateadministration. It comes intoplay if you pass
awayin direct personalpossession of property. If you have a last will in place, the

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will must be admittedtoprobate.
Probatecanbetime-consuming, and thereareconsiderableexpensesthat go
along with the process. It is a public proceeding, and asa result, it opens thedoor
for people with prying eyes.
There arevariousdifferent ways to avoid probate. Toexplore your options,
schedule a consultationwith anestateplanning attorney.
REFERENCES
New YorkCourts
http://www.nycourts.gov/courts/nyc/surrogates/faqs.shtml
Forbes
http://www.forbes.com/sites/janetnovack/2012/10/14/the-forbes-guide-to-
estate-planning/
Nolo
http://www.nolo.com/legal-encyclopedia/free-books/avoid-probate-
book/chapter0-4.html

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About the Author
MarkS. Eghrari
Mark S. Eghrari is an attorney in private practice in Smithtown, New
York. He has been in practice since 1988. Mark S. Eghrari provides
extensive estate and tax planning services to individuals and
businesses. Mr. Eghrari’s primary focus is helping clients avoid
probate, minimize or eliminate Federal and State Estate taxes and
protect their assets from the high cost of nursing care, if they become
ill. Mr. Eghrari’s expertise is in providing unique and innovative
estate planning solutions that create a secure future for his clients and their loved ones. Mr.
Eghrari is a member of the American Bar Association and New York State Bar Association as
well as the National Academy of Elder Law Attorneys and the American Academy of Estate
Planning Attorneys.
Mr. Eghrari completed his undergraduate work at Lafayette College in Easton, Pennsylvania
and received his MBA in banking and finance from Hofstra University on Long Island. He
earned his Juris Doctorate from the Hofstra University School of Law, where he was a member
of the Law Review. While in law school, Mr. Eghrari gained practical experience in the
corporate tax department of Citicorp in New York city.
Mark S. Eghrari and Associates PLLC
www.myestateplan.com
50 Karl Avenue, Suite 202
Smithtown, NY 11787
Phone: (631) 265-0599
Fax: (631) 265-0754