COVID-19 UPDATE: Firm Operations Continue Uninterrupted - Learn More About How We Are Helping Our Clients

New York city skyscrapers
Read on for useful information about Jules
Haas, his practice, and blog below
Read the Blog

original_1074565532-300x107During the course of preparing a New York estate plan, many different issues must be considered.  Initially, the basic plan must identify beneficiaries and the property or amounts each is to receive.  A thorough review and understanding of the creator’s assets and the ownership interests are essential.  As extensively discussed in the New York Probate Lawyer Blog, a Will only controls assets that are held in the decedent’s name alone.  Joint assets and assets with designated beneficiaries pass to the named parties automatically upon death.

Still another concern is whether to create a Living Trust as a primary vehicle for post-death transfers or to rely primarily upon a Last Will.

Regardless of the type of estate plan created, some consideration should be given to any possible effect of estate taxes.  In recent years, estate taxes have received less of a review because the exemption amounts have generally increased.  For the year 2020, the Federal estate tax exemption protects assets up to $11.58 Million.  A husband and wife combined can protect double this amount.  Also, all assets passing between a husband and wife are fully deductible and are not subject to estate tax.

shutterstock_571088005-2-300x200Estate planning in New York, and probating a Last Will in Surrogate’s Court, go hand in hand.  When a person engages in preparing and executing a Last Will, attention must be given to the eventuality of submitting the document to the probate process.  As discussed in many posts in the New York Probate Lawyer Blog, a Will must be executed in accordance with the statutory requirements set forth in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”

It has become more common that individuals prepare their own Will documents.  Many forms of Wills are available on the internet.  These can be found in legal document catalogues or through various legal document drafting services.  When it comes to a Will, not only does the document need to contain specific and properly worded and organized information, the execution and signing process needs to meet statutory requirements.  Thus, when self-help methods are utilized without the assistance of an attorney, the prospects for estate litigation and confusion can increase dramatically.  Such was the situation in a recent Rockland County estate case entitled Matter of Estate of Tsinopoulos, which was decided by Rockland Surrogate Keith Cornell on July 17, 2020.

In Tsinopoulos, the decedent used a Will form which she completed herself without the assistance of an attorney.  She then had the Will executed in her local bank, again, without the assistance of counsel.  While there is no prohibition against preparing and executing a Will without an attorney, the involvement of an estate lawyer gives the execution of the document a presumption of validity.  In this case, the Will left virtually all of the decedent’s assets to her daughter, which prompted the decedent’s son to file objections to the Will and engage in a Will contest.

Probate-300x201A person may prepare and execute a number of Last Wills during the course of a lifetime.  It is not unusual to find that a testator signed a new Will only a few years after having created the earlier document.

In these situations, the provisions in the Wills may be drastically different which may lead to questions regarding the validity of the later document.  The New York Probate Lawyer Blog has recently published articles concerning Will contests and the standing or right of an individual to file objections to a Will.  In essence, a person must have a pecuniary or financial interest in defeating the Will being offered for probate in order to object to its validity.  The statute that provides the rule in this regard is Surrogate’s Court Procedure Act Section 1410 entitled “Who may file objections to probate of an alleged will.”

One common situation is that the individual nominated as executor in a later Will is different from the person named in an earlier Will.  As a result, the earlier named executor may feel that he would want to object to the later Will, which deprived him of his potential executorship.  Executors like all fiduciaries are entitled to receive statutory commissions which may be tens of thousands of dollars in larger estates.

shutterstock_1010278675-300x200In a recent post in the New York Probate Lawyer Blog, we discussed the necessity of reviewing various documents that may have an impact on a person’s estate planning or the administration of his estate.  Such papers would include divorce or matrimonial agreements and business papers.

A recent Manhattan estate case decided by Manhattan Surrogate Nora Anderson on July 6, 2020 provides an excellent example of the need to examine such papers and agreements.  In Estate of Kaufman, the decedent left a Last Will and Testament in which his estate was disposed of between a nephew and another relative.

The decedent was survived by his wife but did not provide for her in his Will.  Prior to his death, the decedent was engaged in a divorce action with the wife.  While the divorce was not finalized before his death, the couple had signed a Stipulation in which the parties divided their marital assets.  The agreement also contained a comprehensive provision by which each waived their rights to share in the other’s estate.

shutterstock_96626983-300x300We know that when a person engages in the process of creating an estate plan, it is important to review all assets that may be part of the disposition framework.  Assets that are owned in a person’s name are typically subject to the provisions of a Will.  The testator creates the planning for the estate by molding intentions around such assets and other property like joint accounts which may pass directly to named beneficiaries.

Similarly, after a person dies, the estate fiduciary, whether an executor or administrator, investigates the ownership of the decedent’s property and collects the estate assets and pays the estate expenses and obligations.  The New York Probate Lawyer Blog contains many informative articles regarding estate settlement.

During the course of administering an estate, the fiduciary must also ascertain whether the decedent was subject to any obligations under various types of lifetime agreements.  These obligations may continue after the decedent’s death and constitute claims against the estate or otherwise affect the distribution of the estate property.  A few examples of such documents and their potential impact will highlight the necessity for a full review during the planning process and post-death settlement of the estate.

shutterstock_548780089-300x200Many decedents’ estates contain assets in the form of real estate.  A decedent may have owned a home or rental property or a commercial building containing a business.  Such items are typically the most valuable items among the decedents’ assets.

If a decedent left a Last Will, such document may provide for the disposition of a specific parcel of real estate to a named person.  When the Will does not contain such a provision or when a decedent dies intestate without a Will, the real property is part of the general estate.  In most of these situations, the property is typically sold to provide for the payment of estate obligations such as an outstanding mortgage or the disposition of funds to a number of estate beneficiaries.  The New York Probate Lawyer Blog contains many articles concerning estate administration.

The sale and closing of real estate by an executor or administrator is usually comparable to the process when a sales transaction is entered into among living individuals.  However, there are a number of important aspects regarding estate closings that should be taken into consideration.  Here are a few important items:

As a Trusts and Estates lawyer in New York, I receive many inquiries from individuals who are concerned about recovering and protecting their estate inheritances.  The administration aspect of an estate generally can be in one of two forms.  There is a probate estate where a decedent dies leaving a Last Will and Testament.  When there is no Will, the estate is the subject of an intestate administration.  The New York Probate Lawyer Blog has published many articles discussing probate and intestacy matters.

When a person believes that a decedent named him as a beneficiary on an account such as a pay on death account or as a designated beneficiary of an asset such as life insurance, the beneficiary should contact the financial institution directly to obtain all details.  Typically, the beneficiary needs to present a death certificate and complete an appropriate death benefit application or withdrawal form.  These papers can be obtained and submitted directly to the bank, insurance company or other institution to claim the inheritance.  There is no need to contact the estate executor or administrator since these types of assets pass outside of the probate or intestate estate.

In some instances, there may be disputes as to whether a proper beneficiary designation form was prepared or filed by a decedent.  These matters may need to be resolved through estate litigation.

shutterstock_204507106-300x254Estate planning in New York is important because it allows a person to create planning documents such as a Last Will and Living Trust.  Advance directives in the form of a Power of Attorney and Health Care Proxy can also be made.  While these papers reflect a person’s intentions regarding the disposition of assets and personal care, they also allow the selection of fiduciaries, such as Executors, Trustees and Agents.

In situations where a Last Will is not in place, a person dies intestate.  As discussed in numerous posts in the New York Probate Lawyer Blog, an intestate decedent’s estate is distributed to his next of kin called distributees.  While the determination of kinship may sometimes be complicated and require the services of genealogists, the selection of the estate Administrator may be equally challenging and contentious.

Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration,” sets forth the right of priority of persons to receive appointment as an administrator of an intestate estate.   As can be expected, a spouse has priority, then children, and then more distant relatives.  Invariably, problems arise when there are multiple candidates occupying a priority class such as children or brothers and sisters.

shutterstock_330039464-300x200A person who is a New York domiciliary typically has his estate administrated in the County Surrogate’s Court where he maintained his home.  Domicile is a person’s primary home as opposed to numerous residences which may be used.

Whether a New York decedent has a probate estate or dies intestate without a Will, primary estate proceedings are filed in New York.  However, it is not uncommon for a decedent to own various forms of property outside of New York.  Administering such assets may be complicated and challenging.

Where an administrator or executor is appointed in New York, such fiduciary generally has the authority to access and collect all of the decedent’s personal property.  For example, the New York executor should have no problem collecting bank accounts or other similar assets that are held in financial institutions in different states such as California.  These institutions may require certain forms and certified documents to be presented but will recognize the authority of the New York fiduciary to close and collect accounts.

shutterstock_635914376-300x144The forum for proceedings regarding a decedent’s estate is typically the Surrogate’s Court.  Probate proceedings and requests for intestate administration are filed in the Surrogate’s Court in the county where the decedent lived.  For example, if the person lived in Manhattan, the estate proceedings would be filed in the New York County Surrogate’s Court.  This would be so even if the individual happened to die in a different location, say on vacation in another state or country.  The New York Probate Lawyer Blog should be referred to for numerous articles regarding estate proceedings.

Sometimes a litigant may want to commence a legal action regarding an estate in Federal Court rather than the local New York Surrogate’s Court.  However, initiating estate cases in Federal Court may be prohibited.  This is due to a well-known Federal Court rule called the Probate Exception.

In order to utilize the Federal Courts, there needs to be a basis for the Federal Court to have jurisdiction.  Basically, there must be a Federal question presented or diversity jurisdiction.  However, even where diversity jurisdiction may exist, the Federal Probate Exception may preclude Federal Court involvement.  This is what occurred in a recent case decided by Federal District Court Judge Kiyo Matsumoto on May 29, 2020 entitled McKie v. Estate of Dickinson.

Contact Information