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The Surrogate’s Courts in New York appoint estate Executors and Administrators and Trustees. These appointments make the appointee a fiduciary. As a fiduciary, the person has many obligations and duties. Any failure on the part of an appointee may result in a breach of fiduciary duty.

In general, a fiduciary has an obligation to collect and to protect assets, pay various expenses and other obligations such as taxes, and to provide payments to or on behalf of the beneficiaries. At times there may be lawsuits that must be defended or commenced in the course of administrating the assets of the estate or trust.

There is also an obligation to treat beneficiaries fairly and for a fiduciary not to engage in self-dealing or benefit himself from his fiduciary position. Conflicts of interest should always be avoided. A fiduciary is required to provide a full accounting of his transactions to the beneficiaries.

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The distribution of a decedent’s estate is controlled either by a Last Will and Testament or by the laws of intestacy. When there is no Last Will, Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” determines the individuals who are entitled to a share of the estate assets. These individuals are the decedent’s next of kin or distributees.

In many intestate estate cases, it is difficult to determine the identity of the distributees. A person’s next of kin may be remote relatives such as cousins. If the family was estranged, the members may have lived in many different states or countries and have had no contact with each other for generations. The Surrogate’s Court and the New York estate laws require that complete kinship information be presented in the form of death certificates, birth records, marriage records and other documentation to demonstrate kinship. New York Estate lawyers help with kinship hearings and estate litigation when heirship is unclear. The New York Probate Lawyer Blog has posted many articles concerning kinship. Call me now if you have a kinship question.

Another aspect of intestacy is the appointment of the estate administrator. If there is a Will, the Court would appoint an executor. When there is no Will, the Court appoints an administrator. Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of Priority for granting letters of administration” sets forth the persons who have the right to be appointed as the administrator. Essentially, these are the same individuals who have rights as distributees.

shutterstock_94407685-300x200Planning an estate in New York is very important. To begin with, if a person dies intestate (without a Last Will), the estate laws in Estates, Powers and Trusts law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate,” determine the heirs that receive the estate assets. Thus, a decedent’s intentions and desires may not be carried out.

Even when a Will is created there may be issues regarding its validity or interpretation. The Surrogate’s Courts are always dealing with estate litigation concerning Will contests. These cases may involve undue influence, lack of due execution and lack of testamentary capacity. The New York Probate Lawyer Blog contains many posts regarding contested estates and estate planning.

When a Will is created, one of the most fundamental considerations is the clear identification of the beneficiaries and the share of the estate they are to receive. Beneficial interests under a Will can be outright or in trust. Also, a designation may be in a specific amount, or a specific item, or in a share or percentage.

When a person dies and leaves a Last Will and Testament, it is necessary to commence a Probate Proceeding to validate the Will. Once the proceeding is complete, the Court admits the document to probate and letters testamentary are issued to the petitioner. The person who files the petition with the Court for probate is typically the individual nominated in the Will.

Probating a Will requires the submission of numerous documents and information including the names of all of the decedent’s distributees (next of kin) and an estimated value of the probate estate. Estate lawyers in New York are familiar with the Surrogate’s Court rules and requirements regarding probate.

Sometimes the full probate can be delayed due to various issues. If an interested person is seeking to Contest the Will then the final determination regarding the validity of the Will may take months or years. The New York Probate Lawyer Blog has published many articles regarding Probate and Will Contests.

Planning a New York estate is an ongoing process. There are always various matters to be considered. Many aspects in a person’s life change over time. The nature and value of assets may fluctuate. Also, the identity of the beneficiaries can vary. There can be new potential beneficiaries such as a new spouse, or children or grandchildren; or a person’s intentions regarding naming fiduciaries may require amending old estate planning papers. Whatever the reason, the start of a New Year is as good a time as any to think about and implement necessary changes.

Each individual has a plan that is unique to his own situation. Documents that should be considered include a Last Will and Testament, Living Will, Health Care Proxy, Power of Attorney and Living Trust.

A recent article written by Jamie P. Hopkins, Esq., appearing at Kiplinger.com on December 3, 2019 entitled “10 Common Estate Planning Mistakes (and How to Avoid Them)”, provides a good summary of areas that should be considered. The first area covered is entitled “Not having a real plan in place.” This topic is particularly important because without any plan, a person cannot control the disposition of his estate. When a person dies without a Will, Estates, Powers and Trusts Law Section 4-1.1 directs how the intestate estate is to be paid out. It is much better to have estate planning papers specifically state which beneficiaries are to receive assets than to leave the decision to New York estate law. The New York Probate Lawyer Blog has posted many articles regarding estate administration and Wills.

Estate planning in New York is an important consideration for all individuals. When a person dies, assets are disposed of according to the laws in New York. If property passes upon death by operation of law then named beneficiaries or joint owners become the owners. Where assets are held in the sole name of the decedent with no beneficiary and there is no Last Will and Testament, the intestate estate is distributable to a decedent’s next of kin. However, the distribution of these same assets owned solely with no beneficiary can be controlled by the terms of a Will. The New York Probate Lawyer Blog has discussed estate planning in many articles.

In the case of a small business owner, particular care and examination must be made as to the consequences of the death of the owner.

To begin with the business owner must assess the nature of the business assets. Is the ownership interest in the form of stock or shares held in a corporation or a membership interest in a limited liability corporation? Perhaps the owner is a partner in a partnership or possibly, there is no actual business entity.

The New York Court system contains a number of different Courts. For instance, in New York City there is the New York City Civil Court, the Family Court, the State Supreme Court, the Appellate Term and the Appellate Division. Additionally, each County has a separate Surrogate’s Court.

The Surrogate’s Court deals with the issues relating to a decedent’s estate. When a person dies leaving a Last Will and Testament, a probate proceeding is filed in the Surrogate’s Court. If the person dies intestate (without a Will), a petition for Letters of Administration would also be filed in the same Court.

All additional proceedings that may relate to estate matters are also filed in this Court. The jurisdiction of the Court is fairly broad. So various matters concerning kinship determination, Will Contests, Accounting Proceedings, Will construction proceedings and various disputes concerning claims and property interests relating to a decedent are typically determined by the Surrogate.

One of the most important fiduciary duties of an Executor or Administrator is locating and recovering estate property. The assets of the decedent must be secured so that they can be distributed to estate beneficiaries. Assets are also needed to pay estate expenses such as deb

Sometimes it is difficult to collect the items that were owned by the decedent. This may be due to a number of factors. One issue that arises quite often is that assets are transferred to third parties shortly before death. This raises questions as to the validity of the transfer. It may be that the decedent lacked the capacity to enter into the transaction or was unduly influenced or the subject of a fraud. In all cases, the fiduciary is obligated to investigate the circumstances behind the transfer and, where appropriate, attempt to recover the assets for the benefit of the estate. This usually involves estate litigation in the Surrogate’s Court. The New York Probate Lawyer Blog has posted many articles concerning recovery of assets and estate litigation.

A recent Queens estate case decided by Queens Surrogate Peter Kelly on October 18, 2019 entitled Matter of Kokotos, provides a good example of the issues presented when there are pre-death transfers. In Kokotos the decedent owned an interest in a Limited Liability Company which owned real estate. Shortly before the decedent’s death, her son, by using a Power of Attorney with a Statutory Gifts Rider, transferred the decedent’s interest in the LLC to the son’s wife. Thus the entire real estate interest was not a part of the decedent’s estate at death.

Inheritance rights in New York are mainly found in Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.” This section provides the priority of persons who have rights of next of kin to receive a share of a decedent’s estate when there is no Last Will and Testament. As can be expected, a surviving spouse and children have the primary rights when there is an intestate estate.

Estate Attorneys in New York are aware that there are additional estate laws that provide family rights. One of the statutes is EPTL 5-1.1-A entitled “Right of election by surviving spouse.” Pursuant to this provision, a spouse who survives a decedent can make an election to receive a one-third share of a decedent’s estate even if the survivor was entirely left out of a Last Will. Essentially, this statute prevents the living spouse from being completely disinherited. In contrast, a person has a right to totally disinherit children or any other relative or friend. Only spouses receive protection under the New York estate laws. The New York Probate Lawyer Blog has discussed spousal and other family kinship and inheritance issues in earlier posts.

In order to secure spousal rights under EPTL 5-1.1-A, a person must file a notice of election within six months after the date of issue of letters testamentary or letters of administration but no later than two years after the decedent dies. The statute provides for service of the notice on an estate fiduciary and for filing in the Surrogate’s Court. The Surrogate does have the discretion to extend the time for reasonable cause. However, the statutory time periods are typically strictly adhered to.

The Surrogate’s Court in New York is the judicial forum that appoints Executors and Administrators of an estate.

When a person dies and leaves a Last Will and Testament, the usual process is to appoint an Executor. The person who is to act as the Executor is named in the Will. Often a Successor Executor is also named.

The probate process requires that a petition for probate be completed and filed with the Court. This petition is usually completed and presented by the nominated Executor and requests that the Court admit the Will to probate. It also seeks to have Letters Testamentary issued to the petitioner.

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