When planning an estate, a person may consider many different provisions that can be a part of a Last Will. Of course, many of the Will terms concern the disposition of assets and bequests to various beneficiaries. A Will may contain a bequest of an amount of money or a devise of a specifically identified parcel of real property.
There are parts of a Will that contain a residuary clause and also the nomination of executors or trustees. Some provisions also are inserted to create a testamentary trust or provide for the appointment of a guardian for a minor.
New York estate lawyers are also familiar with “No Contest” clauses which are also known as “In Terrorem“ clauses. These types of clauses are discussed in Estates, Powers and Trusts Law section 3-3.5 which is entitled “Conditions qualifying dispositions; conditions against contest; limitations thereon”. The effect of this clause is that if a person engages in certain actions like a Will contest, he loses the right to receive any bequest under the Will.
The Probate of a New York Will is the method by which a Will is validated by the Surrogate’s Court. After a Will is admitted to probate the named Executor is typically granted letters testamentary which authorizes him to handle estate affairs. This includes the collection of estate assets, the payment of debts and expenses and the distribution of the net estate to the beneficiaries according to the provisions of the Will.
The probate process requires that notice of the proceeding be given to the decedent’s distributees (next of kin). These individuals have a right to file Objections to the Will. Notice is typically given by the service of a Citation which is like a Summons. The Citation sets forth a date for the parties to appear in Court. The New York Probate Lawyer Blog has published many articles concerning probating a Will.
If any of the distributees want to contest a Will they must file Objections. Usually, Objections are that the Will is invalid due to improper execution or that the decedent did not have testamentary capacity or that the Will was the product of undue influence.
A decedent’s estate is subject to the terms of written documents and estate laws. The primary paper that controls an estate is a Last Will. A duly executed Will that is admitted to probate provides the manner in which the estate is to be distributed.
A Will may contain bequests of specific property or amounts of money. There can also be dispositions of shares or percentages of an estate to estate beneficiaries. The provisions in a Will are determined in the estate plan that is adopted.
It should be noted that a Will is not the only writing that can affect the disposition of an estate. For example, a person may have entered into a pre-nuptial agreement with a spouse. Such an agreement may contain terms that limit or even eliminate a surviving spouse’s right to share in decedent’s estate or to act as an Executor or Trustee. When a pre-nuptial agreement is entered into by the parties there are many factors that must be considered that relate to the disposition of assets in the event of divorce or death. Very often such agreements are utilized in second marriage situations so that assets can be reserved for children or family members from a prior marriage.
When a person dies without a Last Will he is said to have died intestate. In these cases, a person’s estate is distributed according to Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate.
When a person dies the New York Estate Laws provide certain preferential rights to a surviving spouse. For example, a surviving spouse has priority to be appointed as Administrator of an intestate estate. Also, the surviving spouse receives the largest distributive share of an intestate estate.
A spouse cannot be disinherited. The Estates, Powers and Trusts Law Section 5-1.1-A entitled “A Right of election by surviving spouse” gives a surviving spouse a Right of Election. This means that the survivor can elect to receive one-third of a decedent’s net estate. The New York Probate Lawyer Blog has had many posts regarding the Right of Election and the Notice of Right of Election.
This right is often utilized so that a spouse can receive a share of pension benefits or death benefits that have another person designated as the beneficiary.
One of the most common problems and sources of estate litigation concerns the possession of estate property by third parties. In the typical case one of the assets owned by the decedent is property which can be in the form of a house, or a cooperative or condominium apartment. Once an executor or administrator is appointed to represent the estate, the fiduciary has the responsibility to take control of and protect the asset. When the estate property is occupied by a third party or surviving family member, the fiduciary may be prevented from securing the property or selling it to pay estate debts or distributions. The New York Probate Lawyer Blog has published many articles concerning evictions and estate property. This situation often results in estate litigation in either the local landlord-tenant Court or the Surrogate’s Court. New York City Estate Lawyers are familiar with these proceedings. Continue reading
When a person dies without a Last Will and Testament, he is deemed to have died intestate. This means that the administration of the decedent’s estate is to be controlled by the New York laws of intestacy. The primary statutory authority for intestate estates is Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”. This statute provides the order of priority for the individuals entitled to inherit from the estate.
Estate settlement in New York requires that the fiduciary determine and resolve many difficult types of issues. Among the items Administrators and Executors need to finalize are claims against the estate.
Creditor’s claims can be in various forms. The more commons claims are outstanding credit card bills. Also, the decedent may have left unpaid medical bills or a mortgage. Business debts and unpaid matrimonial obligations from a divorce may also need to paid. The fiduciary has a responsibility to satisfy or discharge all claims. If a creditor is not satisfied, a fiduciary can become personally liable if he distributes estate assets before a resolution. Continue reading
Probating a Will in New York can involve many complex procedures. A person typically prepares an estate plan and executes a Last Will so that his intentions regarding the disposition of his estate can be clearly set forth. Since the validity of a Last Will is extremely important, Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides strict guidelines for executing a Will. The need for signatures, witnesses and other statutory and legal requirements are all intended to safeguard the Will execution process.
The New York Probate Lawyer Blog has posted many articles concerning probate. When a Will is filed with the Surrogate’s Court for probate, there are many other papers that need to be provided to the Court such as witness affidavits. Also, the decedent’s next of kin must be identified and given the opportunity to object to the Will. A New York City Probate Lawyer is familiar with these requirements. Continue reading
When a person dies intestate (without a Last Will), his estate is distributed according to the laws of intestacy. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” , provides the statutory list of distributees entitled to receive a distributive estate share.
In order to receive a share, a potential heir must be able to demonstrate his relationship to the decedent. In many cases where the heirs at law are uncertain, the Surrogate’s Court will require a Kinship Hearing before it allows the distribution of the estate funds. The New York Probate Lawyer Blog has posted many articles regarding Kinship proceedings and intestate distribution. Continue reading