Advice on Avoiding Probate from Jones v. Brewster

In March 2019, the Alabama Supreme Court heard an influential estate planning decisions. The case was initiated by Chris Jones, who appealed a circuit court decision regarding a will contest about a will written by Jones’ father. Chris Jones initially filed the case in probate court because the probate court failed to admit the will to probate or to appoint a personal representative of the estate. Around this time, Jones also filed a motion transfer the will to an Alabama circuit court which led to a review by the Alabama Supreme Court.


In its decision, the court held that the circuit court had lacked jurisdiction and as a result the circuit court’s judgment was void and the case was dismissed. This case serves an important reminder about the role that a probate court can have in deciding how an estate is divided.


Probate court in New York as well as every other state has the potential to be a long and drawn out process. As a result, many people during the estate planning process decide to take the steps necessary to avoid probate. In the state of New York, there are a number of ways to bypass the probate process, which will be reviewed in this article.


# 1 – Living Trusts


In New York state, a person can create a living trust to avoid probate for any assets that the individuals own. These trusts must name a person who will take over the management of your trust after death.


# 2 – Joint Ownership


If you jointly own property with another individual and the terms of the ownership includes the right of survival, the surviving owner automatically owns the property at the time that the other owner dies. The probate process is not necessary in these situations because it has already been determined how property will transfer. There are several types of joint ownerships available in New York, which include the following:



  • Joint tenancy. Property in joint tenancy passes to the surviving owners when one of the owners dies. To qualify for joint tenancy in New York, each owner must own the same amount.
  • Tenancy by the entirety. Similar to joint tenancy, tenancy by the entirety only arises among married couples.



# 3 – Payable on Death Designations


A person in New York can add “payable on death” designations to a bank account. In these situations, a person will still be able to control all of the money in their account while they are alive but at the individual’s death, the beneficiary can claim the money directly from the bank where the account was created without proceeding through probate.


Speak with an Experienced Estate Planning Lawyer

If you or a loved one has questions or concerns about the estate planning process or probate court, one of the best steps that you can take is to speak with an experienced attorney. Contact Ettinger Estate Planning today to speak with a knowledgeable estate planning attorney who can help make certain that your end of life goals are achieved.

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