NY Probate Real Property Waiting Period
When a person dies, he often leaves behind an estate that is comprised of all real and personal property. Real property is any real estate owned by the decedent or in which the decedent has an interest. In New York, most estates must go through a formal probate process before the real property can be transferred to the beneficiaries or heirs of the estate; however, there are situations where formal probate is not required. There is no statutory waiting period for the transfer of probate real property, although it may take months to finalize the probate process.
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Probate Basics
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Probate is the legal name used to describe the process by which a decedent's estate is handled after death. Individual states have slightly different laws and procedures for handling probate matters. If the decedent owned real property at the time of death, the property must be transferred correctly according to the probate laws of the state of New York in order to ensure that the beneficiaries or heirs have a clear title to the property.
Formal Probate
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In most cases, a formal probate will be required. Although New York allows a simpler procedure for small estates, if the estate includes real property, then the small estate proceeding cannot be used. If a will was left, and real property is a part of the estate, then a formal probate will be required. Formal probate begins with the filing of a petition for probate and the appointment of an executor. The assets of the estate must then be inventoried and claims of creditors paid. Once the court is satisfied that all required notices have been published, claims paid and assets accounted for, a final accounting can be filed with the court. Only after the final accounting has been approved can real property be legally transferred to the beneficiaries. Each case is unique; however, even a simple probate with no significant issues can take six months or longer.
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Alternatives
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In New York, if the decedent died intestate, meaning without a valid will, leaving only real property, the property vests upon death to the heirs of the estate. In this case, you are not required to probate the estate. You must file the appropriate documents with the tax office in the county where the property is located (see the Resources section of this article). Requirements will vary by county. You may also wish to consult with an attorney to be certain the deed you receive is clear of any encumbrances.
How to Petition
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If you are required to file a formal probate in order to transfer the property, you must start with the petition to probate. An attorney is not required, although you may wish to retain the services of a probate attorney. In New York, probate matters are handled through the Surrogate Courts. The Surrogate's Court website provides all the forms you will need to probate a simple estate (see the Resources section).
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