An Option to Be Considered to Avoid Probate

Dear Mr. Di Costanzo: Does my Last Will and Testament avoid probate?

A Last Will and Testament (“Will”) does not help avoid probate. In fact, the probate process is required for anyone who dies having a will. To avoid probate, which may be a cumbersome process, one must consider a revocable trust.

Probate is the legal proceeding commenced in Surrogate’s Court necessary to prove the validity of a will. There are legal formalities that must be followed when you sign a will in order for it to be valid, and if all is in order, the court issues a decree appointing the executor or executrix.

Prior to the issuance of a decree, a person named as an executor in a will is merely a nominated executor who has no legal authority to act. If a will is improperly executed, like many online wills, it may be invalid, which could result in your wishes not being carried out.

The probate process can be complicated, lengthy and costly. For these reasons, clients often choose to implement revocable trusts as their primary estate planning technique.

The language of a revocable trust is very similar to a will. After you sign it, you then transfer your assets, such as your house and bank accounts, to the trust. If done properly, a revocable trust avoids probate saving your family time, money and hassle.

Salvatore M. Di Costanzo is a partner with the firm of Maker, Fragale & Di Costanzo, LLP located in Rye and Yorktown Heights. Di Costanzo is an attorney and accountant whose main area of practice is elder law and estate planning. He can be reached at 914-245-2440 or via e-mail at smd@mfd-law.com. You may also visit www.plantodayfortomorrow.com.

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