Your estate planning strategy (by way of Wills, Trusts, or no estate plan whatsoever) will dictate the pace and expense of transferring of your assets when, as Shakespeare eloquently put it, you “shuffle off this mortal coil.”
Administration of Wills
Upon death, a Decedent’s will is filed with the Surrogate’s Court in the county where the Deceased was domiciled. The will is presented to the Court’s probate department, and must satisfy the Court’s validating process commonly referred to as “probate.” Upon the Court’s acknowledgment the will, the executor is appointed and now authorized to gather and retitle a Decedent’s assets, and ultimately carry out the distribution plan set forth in the will. Due to a 7-month minimum statutory requirement for estates to avail themselves to creditor claims, a typical probate administration ranges 12 to 18 months from start to finish.
Administration of Trusts
A properly established revocable living trust created during your lifetime will act as a will substitute upon your death. Your appointed successor trustee will play the role of executor and carry out your wishes for distribution of trust assets upon your death. No court authentication is required to validate the trust. All assets (i.e. real estate, bank accounts, securities accounts, etc.) have already been re-titled into the name of the trust, and the named successor trustees can act immediately, and without court approval. The transfer of trust assets to beneficiaries can happen reasonably quickly – in a matter of weeks.
Estate Administration when there is no Will
The New York Surrogate’s Court Procedure Act (SCPA) is your default will courtesy of New York State if you die without preparing an estate plan with someone like me. Often, the rules are different from if you had a choice. (i.e. who I want to be my executor and who do I want to receive my stuff). A separate department in the Surrogate’s Court, the administration department, is reserved for such cases, and the process of authenticating next of kin for estate settlement and inheritance is every bit as lengthy and expensive as probate – and in most cases, much more.