Is a will always necessary and are they always subject to probate?

If there is only a single heir, a small annuity, a few stock holdings and a very small amount of cash in a bank account (all with the beneficiary named), is a will even necessary? And if so, is it always subject to probate?

Asked on May 31, 2009 under Estate Planning, New York

Answers:

S.J.H., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Probate is only needed if there are assets of the decedent where a beneficiary is not named. If the assets you mentioned are the extent of the assets and a beneficiary is named then probate is not needed. However, if there is personal property which is titled but where a beneficiary is not normally named, such as a vehicle or trailer etc. then a small estate proceeding will be needed in order for that asset to be disposed with. This would be applicable if the beneficiary named is the estate or a person who has predeceased the decedent which does not appear to be the case in your situation.

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

By "beneficiary" I assume that you have arranged for "payable-on-death" (POD) designations for the bank account and "transfer-on-death" (TOD) for the stocks and annuity.  Under these facts a will is not necessary.  Assuming that there are no other assets than you should be able to avoid probate.

Even if there were some minor assets not covered, the estate may qualify for New York’s simplified “small estate” probate procedures.

If you have any further questions, don't hesitate to contact a probate attorney in your area.

B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

It sounds like you might be able to do this, if this is all there is to the situation.  But I'm not a New York attorney, and it's best to have a full review, for advice you can rely on.  One place to find a lawyer who can help you is our website, http://attorneypages.com

 


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