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nycSurrogates-1The settlement of a New York estate is comprised of a number of stages.  At the outset, a determination must be made as to whether a decedent had a Last Will and Testament or died intestate.  This is important since the procedures to obtain Letters Testamentary in a probate proceeding, or Letters of Administration in an intestate administration proceeding, are different.  While this initial process appears uncomplicated, there are many cases where the determination as to whether a decedent left a Last Will to be probated is unclear.

First and foremost, a search needs to be performed to locate the original Will.  It may be that the document, if there is one, was retained by a decedent at home or with an attorney.  Sometimes, the only paper to be found is a copy of a Will.  This presents problems since it is very difficult to probate a copy of a Will.  Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” contains specific rules regarding the probate of Wills which are lost.

Assuming that the issue regarding the appointment of an executor or administrator is resolved, the actual day-to-day management of the estate needs to be accomplished.  In this regard, assets need to be identified and collected.  Also, estate debts, claims and taxes must be dealt with and satisfied.  Depending upon the estate, some assets may present complicated issues, particularly where a decedent had various business or other valuable interests.  Valuation issues may arise if the estate is subject to Federal or New York State estate tax.  The New York Probate Lawyer Blog has published numerous articles concerning estate settlement.

It is quite common that when a Last Will and Testament is filed with the Surrogate’s Court for probate, various members of a decedent’s family view the Will provisions to be objectionable.  This feeling of rejection may be based upon a perception that a decedent was somehow coerced into signing a Will or did not have the appropriate cognitive ability to understand what he was signing.  Or perhaps, a decedent promised to make a bequest which does not appear in the document.

While these various reactions may have some general validity, the actual and formal process to contest a Will is very complicated and often difficult to traverse.  The New York Probate Lawyer Blog has published numerous articles concerning Contested Wills and Surrogate’s Court litigation.

When considering whether to object to a Will, the potential Objectant must have a right or legal standing to file Objections.  Typically, an Objectant is a distributee or next of kin of a decedent who would receive a greater share of the estate or an intestate share if the Will is determined to be invalid.  Assuming a person has standing, there are many hurdles to successfully invalidate a Will.

Guardianship-300x201New York Guardianship proceedings are controlled by Article 81 of the Mental Hygiene Law (“MHL”) entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.”  The New York Probate Lawyer Blog has published many articles concerning Guardianship.

The essence of appointing a Guardian concerns a determination that a person is incapacitated.  Incapacity, contrary to its connotation that a person is completely incapable of handling personal needs or property matters, is really a case by case individual determination of abilities.  The inquiry is to examine a person’s functional ability as it relates to handling activities of daily living.  According to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment,” incapacity needs to be shown by clear and convincing evidence.  There must be a determination that a person will likely suffer harm because they cannot provide for their needs and that the person cannot appreciate and understand the consequences of their disability.

In a typical case, a petition is filed with the Court.  The Court then sets a date for a hearing.  All close family members are given notice as well as other interested parties.  The alleged incapacitated person usually has a Court-appointed attorney and the Court may appoint a Court Evaluator.  The Evaluator reviews the case, interviews parties, and provides the Court with a report and recommendations.

shutterstock_1021207423-300x200The settlement of a New York estate can be very complex based upon a number of factors.  To begin with, different rules apply where a decedent died with a Last Will and Testament as opposed to an intestate estate.  In the case of a Will, the distribution of estate assets is controlled by the terms of the Will.  In the case of intestacy, estate distribution is based upon the provisions of Estate, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.”

Also, where a Will exists, there is usually an executor appointed.  An estate administrator is appointed where there is no Will.  Both Executors and Administrators have essentially the same powers and authority although a Will may provide specific powers or directions to the estate fiduciary.

The New York Probate Lawyer Blog has published many articles concerning real estate and estates.  A very common issue which arises is that an estate’s primary and most valuable asset is real estate.  If there are multiple estate beneficiaries, the real estate may need to be sold in order to satisfy each of the beneficial shares.  In many cases, the asset may be occupied by third party tenants or even relatives.  As a result, the estate fiduciary may need to commence eviction or ejectment proceedings in order to obtain possession of the property before it can be sold.

Living-Trust-2-300x200A typical estate plan includes a number of commonly recognized documents.  First and foremost is a Last Will and Testament.  As discussed in many posts in the New York Probate Lawyer Blog, a Will controls the disposition of assets held in a decedent’s name alone.  Thus, assets such as joint bank accounts or items which have designated beneficiaries such as retirement accounts and life insurance pass directly to the other named party.  The terms of a Will do not control these assets.  Therefore, any estate plan should include careful scrutiny as to the title of assets and whether named beneficiaries have been added.

When a person dies, his Will is filed with the Surrogate’s Court along with a petition for probate.  When a Will is admitted to probate by the Court, the terms of the Will become effective.

It has become more popular recently to include the creation of a Living Trust as part of an estate plan.  Living Trusts are also referred to as grantor or revocable trusts.  The basic format of a Living Trust is that assets owned by a person in their names are presently transferred into the trust.  Thus, real estate is placed in the name of the trustee of the trust as well as bank accounts and other items.  The intention is to put a person’s assets into a Living Trust in order to avoid probate.  When a person dies, the terms of the trust can be effectuated expeditiously without having to wait for the probate process to be conducted in the Surrogate’s Court.  Also, the Living Trust can have provisions for the management of property if the grantor becomes ill or disabled.

Probate-300x201A Last Will and Testament is a document meant to memorialize a person’s intentions regarding the disposition of his property after death.  The various rules and statutes relating to the probate process are typically strictly adhered to by the Surrogate’s Court.  This is because if there are any variations or discrepancies, a decedent is no longer around to explain what was intended.  The Surrogate’s Court is the place where most Wills are filed to commence probate.

The New York Probate Lawyer Blog has published many articles concerning the probate of a Will as well as other topics, such as intestate distribution and estate settlement.  As many of these articles discuss, the process is commenced by filing a Petition for Probate with the Court and seeking the granting of Letters Testamentary.  The Petition contains a fair amount of information, including the name and address of the petitioner, the decedent’s next of kin (“distributees”) and Will beneficiaries.  Information is also provided regarding the date of the Will, the names of the Will attesting witnesses and the estimated value of the probate estate.

For the most part, the distributees have a right to challenge or contest a Will.  If the document is determined to be invalid, and the decedent is found to have died without a Will, the estate is distributed to the intestate heirs.

shutterstock_204507106-300x254Estate planning in New York is essential for the efficient settlement of a decedent’s estate.  The New York Probate Lawyer Blog has published many articles regarding planning an estate.  The various documents which may be prepared as part of a plan include a Last Will and Testament, Living Will, Health Care Proxy, Power of Attorney and Living Trust.  In short, these papers can be described as follows:

  • Last Will and Testament: contains various provisions detailing a testator’s intentions and directions for the disposition of assets which are owned by a person in his name alone.  It is essential to remember that assets which are held jointly with others or have named beneficiaries, such as a life insurance policy, are paid directly to the designated surviving parties and are not controlled by a Will.
  • Living Will: has provisions which explain a person’s intention and desire not to be artificially kept alive if their ability to live is intrinsically lost such that they are brain-dead.

shutterstock_96626983-300x300Estate planning in New York presents many benefits for settling an estate.  The foundation for any plan is a Last Will and Testament.  This document allows a person to memorialize in writing his intentions and desires regarding the disposition of estate assets.  Provisions can be made for bequests of specific property to individuals and various shares of an estate can be allocated among family and friends.  In effect, a Will allows for a written enforceable declaration by a testator regarding distribution of assets.

Although a Will needs to be filed with the Surrogate’s Court and be admitted to probate, in most instances the probate process is not complicated by Will contests or other types of estate litigation.  The New York Probate Lawyer Blog has published many articles concerning estate planning, probate and estate settlement.

Another important advantage of preparing a Will is the designation of an executor.  The Surrogate’s Court routinely accepts a testator’s nomination unless specific wrongdoing or other impropriety is shown by an objectant.  A nominated executor can be a family member or a friend or a professional advisor.  Generally, only non-resident aliens are excluded.

Fiduciary-300x185In many instances, there is a possibility that co-fiduciaries may be appointed to represent an estate.  Let’s begin by examining intestate administration.  When a decedent dies without a Last Will and Testament, the appointment of an estate administrator is determined in accordance with Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration.”  This statute provides that letters of administration are to be granted to family members with priority to a surviving spouse, and then children, and then other more distant relatives.

In particular, since a decedent may have many children, there is a real likelihood that more than one child may wish to serve as administrator.  It is not uncommon in these instances for litigation to occur in the Surrogate’s Court with competing petitions for appointment.  Many times, a matter ends up being resolved with the appointment of co-administrators.

When a decedent leaves a Last Will, the provisions of the document may contain the nomination of co-executors.  Unless one of the named parties declines or is unable to act, the Surrogate’s Court will appoint co-executors to administer and settle the estate.

Estate-Settlement-300x200A decedent’s estate consists of many different types of interests and assets.  These items may include bank accounts, security or other financial accounts, real estate interests, various retirement accounts such as individual retirement accounts, pensions and 401(k) plans, and business interests in partnerships or limited liability companies.  There can also be interests in creative works, trademarks and copyrights.

At the inception of an estate, a determination must be made as to whether a Last Will and Testament exists which needs to be probated.  In the event there is no Will, then letters of administration would be required to settle the estate under the intestacy statutes.  The appropriate proceedings must be filed in the Surrogate’s Court.  In either case, a fiduciary is needed to have the authority to handle the estate assets.  Assets that are owned by a decedent in his name alone pass through the estate.  When an asset has a named beneficiary or a joint owner with survivorship rights, these items are distributed directly to the other named party.

A fiduciary, whether an executor or administrator, has various powers and authority regarding estate affairs.  The Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ Powers” provides a detailed list of powers.  These include powers to take possession of estate property and to sell or dispose of such property.

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