Will contests in New York involve many different considerations. To begin with, there is a complex set of statutes and rules regarding the procedure to be followed in these cases. When a Will is filed with the Court for probate, it is necessary to provide notice to all of the decedent’s next of kin regarding the probate proceeding. The next of kin, known as distributees, have a right to Object to the Will. The notice they receive is called a Citation.
Prior to filing Objections to a Will, the distributees have the right to obtain testimony and documents from the attorney who drafted the Will and the attesting witnesses. These steps are provided for by Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required”. Continue reading
The preparation and execution of a Last Will is an important part of a person’s estate planning. A Will along with documents such as a Living Will, Health Care Proxy, Power of Attorney and Living Trust, can all be utilized to express a person’s desires and intentions regarding his property and personal affairs.
Many posts provided by the New York Probate Lawyer Blog discuss the need to expend the time and effort required to prepare and finalize a Will so that it fully provides for estate distribution. New York City Estate Administration attorneys assist clients in reviewing their assets and developing plans that most effectively reflect the client’s wishes. Continue reading
Surrogate’s Courts in New York are known for handling proceedings concerning the estates of a decedent. New York City Probate Lawyers assist their clients with filing cases for the probate of a Last Will. Estate Attorneys also help when there is no Will and a decedent dies intestate. In these matters a proceeding is filed to obtain Letters of Administration.
While probate and administration matters are commonly recognized to be reviewed by the Surrogates, there are many different types of issues and controversies that the Court decides. The general rule is that the Surrogate’s Court has jurisdiction over all matters that can effect a decedent’s estate. The variety of cases is endless. For example, I have represented clients in cases where the Court has been asked to evict occupants of a decedent’s residence. This typically occurs when a family member refuses to vacate the decedent’s property so that the executor or administrator can sell it on behalf of the estate. The Court can direct the occupant to vacate the property and can issue a warrant to the NYC Marshall or Sheriff to effectuate the eviction. The New York Probate Lawyer Blog has discussed some of these eviction problems in earlier articles. Continue reading
Guardianship cases in New York are provided for by Article 81 of the Mental Hygiene Law (“MHL”). Article 81 is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. As a New York City Guardianship attorney, I have represented many individuals who have filed petitions for Guardianship appointment.
MHL Section 81.02 essentially requires that unless a person agrees to the appointment, the Court must find by clear and convincing evidence that a person is incapacitated. The person against whom the proceeding is brought is called an alleged incapacitated person (AIP). The AIP is entitled to a hearing before the Court can make its decision regarding the need for a Guardian (MHL 81.11). Continue reading
The fundamental goal of estate settlement is to collect the decedent’s assets, pay all claims and administration expenses and distribute the net estate to beneficiaries. New York estate administration attorneys help their clients accomplish these tasks. Both executors and administrators have fiduciary duties to see to it that the decedent’s affairs are properly handled.
It is not always an easy task to determine the nature of the decedent’s assets. In some cases the decedent’s records may be incomplete or unclear as to asset ownership. Other times, problems may arise due to pre-death transfers of assets or third parties trying to hide the decedent’s ownership for their own benefit. Assets may have been transferred before death to another person by the use of a power of attorney or due to undue influence. Proper estate administration requires that the estate’s interest in these items be thoroughly investigated and Court proceedings be commenced to have third parties turn over estate assets. Continue reading
One of the most important papers that are part of all estate cases is a death certificate. While this statement appears obvious, the presentation of the certificate to the Court and the information contained therein can create roadblocks and issues that need to be overcome. A New York City estate administration lawyer is familiar with the Court requirement that a death certificate must be presented to the Court when a petition is filed seeking to probate a Last Will or to obtain letters of administration.
One problem presented with the need for the certificate is that sometimes there is a delay in obtaining the certificate. Typically, in New York City estates, the local funeral home obtains certified copies of the certificates from the New York City Department of Vital Records. However, this may take some time. Additional issues may arise if the decedent, who may have been a New York resident or domiciliary, dies out of state. I have seen many instances where a person dies out of state. When this occurs, the New York Surrogate’s Court often requires an affidavit explaining the reason for the decedent being out of state and showing that the decedent was a New York domiciliary. Continue reading
One of the most important papers that are prepared in estate planning is a Last Will and Testament. A lot of time and effort can be spent when finalizing a Will. The process includes many items, such as (i) reviewing and understanding the assets that are to be a part of the plan; (ii) determining the persons who are to be estate beneficiaries; (iii) considering the amount of a bequest or the share of the estate that each beneficiary is to receive: (iv) deciding upon whether a beneficiaries’ share is to be paid outright or held in a trust for the beneficiaries’ benefit; (v) examining whether there are any tax planning provisions that can help save estate or income taxes; and (vi) choosing persons that may act as executors or trustees. The New York Probate Lawyer Blog has provided a great many articles regarding Wills and estate planning. Continue reading
One of the reasons for a person to engage in Estate Planning and to prepare a Last Will is to provide a nomination in the Will for Executors and Trustees. When a person dies intestate (no Will) the estate laws designate the persons entitled to act as administrator. The New York Probate Lawyer Blog has published many articles regarding estate planning and estate administration.
Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of priority for granting letters of administration” provides the list of individuals (i.e., spouses, children) who have the priority to be appointed as the estate fiduciary. In many instances, the individuals who have the statutory right to be appointed administrator may not have been the choice the decedent would have made. Continue reading
Probating a Will in New York is usually not a contentious process. The original Will is filed with the Court and typically the person named in the Will as the Executor prepares and files a Probate Petition. When a Will is admitted to probate, the Court issues Letters Testamentary to the petitioner. This document provides the executor with the authority to administer the decedent’s estate.
As discussed in prior posts in the New York Probate Lawyer Blog, all of the decedent’s next of kin (“distributees”) must be given notice of the probate proceeding. Each distributee has a right to object to the Will. The procedures involved with Will Objections necessitate that all of the parties engage in a discovery process so that the Court can be presented with facts regarding the validity of the Will. Continue reading
The executor or administrator of a New York estate is required to consider many factors when administering an estate. One of the items that the fiduciary needs to review is whether estate taxes need to be paid.
In the year 2017 the Federal Estate tax exemption is $5,490,000. New York State also imposes an estate tax and the 2017 exemption after April 1, 2017 is $5,250,000. While many estates appear not to be subject to the tax, it is necessary that all of the decedent’s assets be properly valued in order to avoid a possible claim by the taxing authorities that a tax or additional tax must be paid. The estate tax must be paid and a return filed within 9 months after the death of the decedent. While an extension to file the return can be obtained for 6 months, any non-payment or underpayment of the tax can result in the imposition of substantial interest and penalty charges. It is not unusual for the Internal Revenue Service or local tax authority to require an audit and to claim that estate assets have been undervalued. This is especially true with business interests and other hard to value assets such as artwork. Continue reading