New York Probate Lawyer Blog

The settling of an estate in New York involves numerous stages.  At the outset, after a person dies, decisions must be made as to whether to probate a Last Will and Testament or if intestate Administration is required.  In order to proceed, a Last Will must actually be located or determined not to exist.  Sometimes the original Last Will is easily found amongst a decedent’s personal effects or on file with an attorney.  If located, a Will is then filed with the Surrogate’s Court and the probate process is commenced.  When there is no Will, a petition for intestate Letters of Administration is the path to follow.

Even at this early stage, a decedent’s next of kin and named beneficiaries are anxious to know about the steps being taken to have a fiduciary appointed to handle estate affairs and also to learn about estate assets.  The persons who have the initial opportunity to move forward are those individuals designated as Executors or who have a priority right under the New York estate laws to be appointed as Administrators.

It is very common for parties who have an interest in an estate to contact me and relate that they are not receiving any information from a potential Executor or Administrator as to their progress in obtaining Court appointment.  Unfortunately, in the regular course of events, a named Executor or potential Administrator is not required to report their progress.  If there is an inordinate delay, say the filing of a Will with the Surrogate’s Court, a proceeding can be filed with the Court to require individuals who possess an original Will to file it in the Court.  Also, there may be alternate person’s who would have the statutory right to commence a proceeding for Letters of Administration or Letters Testamentary.

Obtaining a divorce and creating an Estate Plan seem at first to be two separate unrelated activities.  However, on more than one level, a divorce or contentious matrimonial situation leads directly to the need for effective planning of an estate and possible probate or estate litigation.

Of course, in a typical marital split, it is essential that property ownership documents such as deeds, financial accounts and retirement funds be amended to reflect the marital split and also comport with property settlement agreements.  In this regard, pre-existing Last Wills and Trusts should be reviewed, as well as beneficiary designations, so that a divorced spouse is not named in a way which no longer is desired.

While the above appears to be basic considerations, there are occasions where documents and ownership rights are neglected after a divorce leading to confusion and unwanted results.  Equally important is examining the effects of a matrimonial situation before a final resolution.  Spouses while still married have certain rights to share in a Decedent’s estate.  If a divorce is not final, a disinherited spouse in New York still has a Right of Election to obtain one-third of an estate and certain other property owned by a deceased spouse.

The settling of a decedent’s estate in New York may involve multiple issues.  At the outset, a determination needs to be made as to whether a decedent died intestate (i.e. with a Last Will and Testament) or intestate (no Will).  This determination then governs as to whether a Probate proceeding or Intestate Administration proceeding is to be filed with the local Surrogate’s Court. Each type of proceeding has its own very special Court processes and issues.  For example, in a Probate Proceeding it is important to locate and file a decedent’s original Last Will.  If the original document cannot be located, it is possible to probate a copy of a Will.  However, a proceeding to probate a copy of a Will where the original has been lost is exceedingly difficult.  Where the original document is known to have been in the possession of a decedent, there is a presentation that it was a decedent’s intention to revoke the Will if the original is missing.  The New York Probate Lawyer Blog has published numerous articles concerning probate, intestate administration and other estate and trust issues.

Many estates contain interests in real property.  The most common situation is the home where a decedent lived.  At the time of death, it is imperative that a search be performed to determine the ownership of the property.  A quick review of the property deed is helpful.  In New York City there is a website called ACRIS which contains copies of deeds and other real estate filings.  A search of the deed may show that a property is owned solely by a decedent.  In such cases, the property would pass according to a Last Will or the laws of Intestacy.  In intestacy, a decedent’s next of kin or distributees would become the property owners.  If there is a Will, the document would specify how the real estate is to be disposed of.

A search of the property records may also show that a property is owned by a number of other individuals along with a decedent as tenants in common.  In other words, each person, as well as a decedent, may own a share of a property, say twenty percent.  Also, a deed may provide that a decedent owns a home with a spouse as tenants by the entirety or with one or more other individuals as joint tenants with rights of survivorship.  In these later cases, the property ownership would pass automatically on death to the surviving spouse or joint owners.  The property would not be controlled by a Last Will nor would it pass to the next of kin.  Thus, a devise of a survivorship property in a Will would be ineffective.