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Most people prepare their estate plans and Last Wills and expect that the provisions and directions they set forth can be carried out after death. The rationale for planning an estate is to avoid intestacy which would leave to chance the manner in which an estate is to be distributed. As discussed in many articles in the New York Probate Lawyer Blog, when a person dies without a Will, the New York estate laws provide that the estate is distributed to the decedent’s next of kin. This result may not always reflect a testator’s intent.

When a Will is submitted to the Surrogate’s Court for probate, the estate laws and procedures require that official notice be provided to the decedent’s next of kin. This is because these individuals have a right to contest the Will. If a Will is invalidated, the decedent’s estate is distributed to the next of kin. Continue reading

The execution of a New York Will must comply with the requirements of the estate statutes. It is important to follow these rules so that the Will be validated and admitted to probate. There have been numerous posts in the New York Probate Lawyer Blog explaining the need for the proper execution of Wills. The basic estate law dealing with this matter is Estates, Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of wills; formal requirements”.

This statute sets forth a number of requirements including: (i) that a Will be signed at the end of the document: (ii) that there be at least two witnesses; (iii) that the testator sign the Will in the presence of the witnesses; and (iv) that the testator declare to the witnesses that he is signing his Will. Continue reading

A decedent may leave many types of estate assets. Some of these items that are held in the decedent’s name alone will be payable to the executor or administrator as part of the administration estate. Other assets such as life insurance or pension proceeds may be payable to designated beneficiaries. The New York Probate Lawyer Blog has many posts regarding estate assets and administration.

It is interesting to know that these designated beneficiary assets may result in complicated issues which involve both the rights of the named payees and other estate interests. In particular, these issues are often present when a decedent has retirement or death benefits with the New York City Employees’ Retirement System commonly referred to as NYCERS. Continue reading

When a fiduciary is appointed to administer a decedent’s estate, one of the main objectives is to collect and protect a decedent’s assets. Thus, Administrators and Executors typically search through the decedent’s papers and records to learn about the decedent’s financial estate.

In most cases it is rather straight forward to find bank account statements, brokerage accounts and real estate titles. However, as New York City estate lawyers know, there are many instances when determining and collecting a decedent’s valuable assets can be very difficult. Continue reading

When a person dies it is common to refer to matters dealing with the decedent as issues concerning his “estate”. However, it is important to learn exactly what is meant by a person’s  estate”.  Upon death, an individual typically owns various assets. These may include real estate, bank accounts, brokerage accounts, individual retirement accounts, life insurance and pension benefits. All of these items comprise a decedent’s “gross estate”. However, a distinction needs to be drawn between the “gross estate” and a decedent’s estate for purposes of administration.

The assets owned by someone who dies that are held in his own name are going to be controlled by a person’s Last Will. If there is no Last Will, these items will be distributed according to the laws of intestacy. In these cases, the Surrogate’s Court appoints either an Executor or an Administrator. Assets that are held jointly or with a named beneficiary may be part of a decedent’s gross estate but are not part of the administration estate. The New York Probate Lawyer Blog has published many articles talking about the way various assets are transferred upon an individual’s death.

It is important to know that an Executor or Administrator is the only person authorized to deal with the affairs of the administration estate. The estate fiduciary has the power to collect assets, pay estate taxes and bills, sell estate property such as real estate and engage in estate litigation to resolve estate disputes.  The estate beneficiaries do not have this authority unless they are the Court appointed fiduciary.

The preparation and execution of a Last Will in New York requires careful attention to detail. When a Will is being formulated a New York Estate lawyer typically obtains information from a testator regarding assets and intentions concerning beneficiaries.

Since the purpose of estate planning is to insure that a person’s assets are disposed of properly, it stands to reason that a significant amount of time and effort be devoted to examining these issues. For example, the New York Probate Lawyer Blog has published numerous articles that point out that a Last Will typically only controls assets that are held by a decedent in his name alone. Assets that pass by operation of law, such as jointly owned assets or those that have designated beneficiaries such as life insurance or retirement accounts, are not controlled by Will provisions. Therefore, it is important for a testator and for an estate lawyer to understand the nature of the asset ownership so that the plan and the Will dispose of the estate according to a testator’s wishes. Continue reading

The settlement of an estate in New York invariably involves the kinship of a decedent. Whether the proceeding concerns the probate of a Last Will or an intestate administration, the Court requires full and specific information regarding the decedent’s next of kin (known as “distributees”).

In a probate case, the decedent’s distributees must be identified and given notice of the probate proceeding because these individuals have a right to contest the Will. Where a person dies intestate (without a Will) the statutes provide that the individuals who are entitled to serve as the estate Administrator and also inherit the estate are the decedent’s distributees. Continue reading

Creating an estate plan in New York involves preparing a number of different documents. These papers may include a Last Will or Living Trust. There may also be other documents associated with a person’s assets such as bank accounts, life insurance policies and retirement funds like Individual Retirement Accounts and 401K plans.

In all instances, it is very important to take care to properly name the beneficiaries on the documents. In this regard there are various rules and requirements and procedures that need to be adhered to so that the beneficiary is properly designated. For example, in a Last Will, when a person is named as a beneficiary of a bequest, the person’s name should be clear and correct. Also, it is a good practice to provide for an alternate beneficiary in the event the primary beneficiary predeceases the testator. Continue reading

Estate litigation in the Surrogate’s Court is common. There are many different types of proceedings where parties engage in conflict. Probably the most well-known area of litigation in an estate is a Will Contest. When a Will is contested and Objections to probate are filed, there can be many months and sometimes years of Court proceedings regarding the validity of a Will.

Another well-known area of dispute involves Accountings that are filed by an estate fiduciary such as an Executor or Administrator. Beneficiaries of estates and trusts often have Objections to the manner in which a fiduciary has collected or handled estate assets. In these cases there are usually questions regarding a breach of a fiduciary duty. Continue reading

The statutes in New York provide for a Guardianship for a person who is found to be incapacitated. Article 81 of the Mental Hygiene Law is entitled “Proceedings For Appointment of a Guardian For Personal Needs or Property Management”.

In a typical case a Guardianship is sought to be established by someone who is concerned with the welfare of an alleged incapacitated person. There are numerous situations that arise that can prompt a Guardianship application. The more common problems involve cases where the incapacitated person cannot make decisions regarding assets or handle property matters. As a result, various bills are not being paid such as utility bills, medical expenses, a mortgage or rent or other necessary items. Due to the person’s inability to deal with these matters he is at risk and may suffer harm if these expenses remain unpaid. Continue reading

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