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Common Misconceptions About Probate in New York 

Law Office Of Corey J. Rossi Dec. 29, 2022

Probate Filings Court Document Estate PlanningThe probate process can be a confusing situation. With so much information swirling around online, we are here to clear up the most common misconceptions about probate in New York. From our firm in Tonawanda, New York, we also serve those in Amherst, Wheatfield, Erie County, and Niagara County. Don’t go at it alone. Get the help you need today. 

If I have a will, my estate won’t go through probate. 

A will is a public document. As a result, it must go through the probate process. However, drafting a will greatly speeds up the entire probate process. Unless someone decides to challenge the will, the probate court’s function is to transfer property ownership to the named beneficiaries officially. 

The most common assets that need to go through probate include: 

  • Real estate or a personal property titled in an individual’s name 

  • Shared property owned as tenants in common 

Please note that dying intestate (without a will) means the estate must go through probate court in order to divide assets equally among eligible recipients.  

Probate means that the state is getting all my assets. 

The function of probate is to ensure a fair division of assets among all eligible recipients. This process is known as intestate succession. As a result, the state does not get all assets in the probate process. In fact, the state exhausts every means necessary to find eligible beneficiaries when there are no known beneficiaries or if the named beneficiaries have already passed away. Unless there is no way of tracking down any next of kin, the state keeps the property. 

The probate process takes years to finalize. 

The probate process generally takes a few months to finalize when there is a will. However, it can take years if there are challenges to the will. The intestate succession process (in other words, the probate process for when someone dies without a will) generally takes more than a year, depending on the size of the estate and the number of potential beneficiaries.  

Please note that the probate process can take longer when creditors become involved. The court settles the estate until debts have been settled. 

Estate taxes will consume most of my estate. 

Not all assets are liable to estate taxes. Moreover, assets eligible for estate taxes are first valued according to fair market value. Then, deductions such as mortgages and outstanding debts are calculated. The remaining value is taxed according to current rates. As a result, taxes do not consume an entire estate. It is important to consult with an experienced probate attorney to determine specific exemptions. 

I don’t need an attorney to go through the probate process. 

This misconception is the biggest one of all. While hiring a probate attorney is not legally required, it is highly recommended to do so. An experienced probate attorney has a lot of roles they can take to help you through the probate process. They help folks navigate the waters of the entire probate process, including supporting and guiding in the following ways: 


  • They can guide you in filing any necessary paperwork. 

  • They can litigate or mediate throughout the probate proceedings.  

  • Most importantly, hiring a probate attorney can help speed up the entire probate process.  

You can’t touch assets until the probate process is over. 

The probate process ensures legal ownership of assets after a person’s death. But that does not mean that surviving relatives cannot utilize certain assets. For instance, family members may continue living in a home while the probate process finalizes. However, other assets, such as bank accounts, which cannot be touched until the probate process finalizes. If there are disputed properties, it is best to avoid utilizing them.  

Hiring a probate attorney is expensive. 

While hiring an estate attorney costs money in terms of legal fees, a professional probate attorney can also save money on estate taxes and negotiating with creditors. Moreover, an experienced probate attorney helps speed up the entire probate process. As a result, attorneys’ fees pay for themselves in terms of saved time, money, and effort.  

Also, at The Law Office of Corey J. Rossi, our attorneys strive diligently to give our clients affordable service. We take efficient care with your case. The time we take is shorter, but without sacrificing the quality of it.   

Finding the Right Probate Attorney in New York 

At The Law Office Of Corey J. Rossi, our probate attorneys work hard in striving to protect our clients’ rights. Attorney Corey Rossi and Attorney Don Lewinski III have years of experience as lawyers, and we work diligently to provide efficient and affordable service. We deliver professional legal counsel to help our clients navigate the probate process. We strive to give our clients peace of mind during the most difficult times in their lives. Call today to speak with a professional probate attorney.