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When a person creates a New York Estate Plan, one of the most important documents is a Last Will and Testament.  A Will is an instrument that controls the disposition of assets that are owned in the name of the decedent alone at the time of death.  Assets that are owned in a different manner such as joint ownership or with a designated beneficiary pass automatically to the named party outside of the Will.

In order for a Will to be valid it must be executed in accordance with the statutory requirements provided in the New York Estate Laws.   Estate lawyers know that the guidelines provided in Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements” must be strictly followed.  If a Will fails to meet the tests of this statute, the Surrogate’s Court won’t admit the Will to Probate.   The New York Probate Lawyer Blog has posted many articles regarding Wills, Will Contests and Probate.

Once a person has executed a Will, there are times when he wants to change the terms of the document.  Once again, any modifications need to comply with EPTL 3-2.1.  This can be done by a Codicil or amendment to the original Will or a by executing a new Will that is properly signed.  However, if the original Will is changed by merely handwriting new information on the document or making notes about cancelling it, the Will in original form still remains viable.  This is because the changes were not done in accordance with the statute.

The job of an estate fiduciary is to settle a decedent’s estate.  Whether the fiduciary is an Executor or Administrator there are three main aspects to estate administration.  At the outset, the proceeding to appoint a fiduciary is critical.  This is because until an administrator or executor is appointed, there is no one who has authority to handle the affairs of the decedent.  Thus, estate assets cannot be collected or protected and estate debts and obligations cannot be paid or satisfied.

Each estate is confronted with different issues.  Sometimes a Last Will needs to be probated which may result in estate litigation in the form a Will Contest.  Other estates may be intestate which can involve kinship hearings.

Once a fiduciary is appointed, the next step is to collect the assets of the estate and determine what debts, taxes or other liabilities need to be resolved.  On occasion, there may be lawsuits involving the decedent concerning debts such as mortgages, credit cards or medical expenses.  There can be disputes concerning real estate ownership or business interests.  The New York Probate Lawyer Blog has published many articles relating to estate administration.

When a person dies there is a lot of concern about the actions to be taken regarding the handling of the individual’s estate.  While this article talks about 5 important steps or considerations in truth, depending upon the nature of the estate, there can be many more.

To begin with, there may be uncertainty regarding the manner in which the decedent’s body is to be disposed of and who should be the person in charge of this matter.  If the decedent left instructions or a pre-paid funeral account, this matter may be easily resolved.  Unfortunately, in some cases there are no precise funeral or burial instructions and there may be competing family members or friends who want to control the final rites and burial decisions.  This can lead to litigation if not resolved.

Another consideration is whether or not the decedent left a Last Will and Testament. The New York Probate Lawyer Blog has published many articles concerning this subject.   If the decedent left a Last Will, the original should be located so that it can be filed with the Surrogate’s Court and a Probate Proceeding can be started.  If there is no Will and the decedent died intestate, then an administration proceeding needs to be filed to have Letters of Administration issued to the Estate Administrator.   When a Will is probated, Letters Testamentary are issued to the Executor.

Among the many fiduciary duties that an Executor or Administrator must perform is the duty to locate and collect estate assets.  There are a variety of assets which include bank accounts, security accounts, retirement funds, business interests, life insurance, annuities and real estate.   In New York, along with real property such as a single family home, a decedent may own a cooperative apartment or a condominium unit.

The job of the fiduciary is to collect these assets and ultimately distribute them or their proceeds to the estate beneficiaries.   In most instances it is fairly easy to identify and collect funds particularly when they are held in bank accounts or other financial institutions in the name of the decedent.  The New York Probate Lawyer Blog has devoted numerous blog posts to asset collection and estate settlement.

However, there are occasions when identifying and collecting estate assets can present difficulties.  An interesting example of a problematic situation was discussed in a Manhattan estate case entitled Matter of Estate of Solano.  This case was decided by Manhattan Surrogate Nora Anderson on September 30, 2019.  In Solano, the decedent had purchased an interest in her cooperative apartment which was one of the Mitchell-Lama program cooperatives.  Under this program the purchaser paid a small initial price and, upon death, the owner’s estate was only entitled to receive back the value of the owner’s initial investment.

The statues concerning the appointment of a New York Guardian for personal needs or property management are located in Article 81 of the Mental Hygiene Law (MHL).  In order to have a Guardian appointed MHL 81.02 requires that the alleged incapacitated person either agree to the appointment or that the person be found to be incapacitated.

The New York Probate Lawyer Blog has posted many articles concerning the appointment process for Guardians and other aspects of Guardianship.  Briefly, there is the requirement that a petition be filed with the Court and that proper notice be given to interested parties.  An alleged incapacitated person has the right to oppose the imposition of a Guardianship and also the selection of the person appointed.  In these hearings the Court will focus on an individual’s functional limitations with regard to engaging in activities of daily living.

One interesting section of Article 81 is MHL 81.29 entitled “Effect of the appointment on the incapacitated person”.   This section is important since a person who is found to be incapacitated retains certain civil rights.  Also, there may be aspects of the person’s pre-appointment actions which may need to be modified if they were tainted by the incapacity.

There is general agreement that it is important to prepare a New York Estate Plan.  The documents that may be considered in planning include a Last Will and Testament, Health Care Proxy, Power of Attorney, Living Will and Revocable Trust.  Some of these papers are referred to as advance directives.

When a person prepares a Last Will, the document is comprised of many different provisions.  There are dispositions of a person’s assets which may be comprised of specified assets or bequests.  Other dispositions may be in more general terms such as the disposition of the residuary estate.

Another very important part of a Will is the nomination or designation of fiduciaries such as Executors and Trustees.

When a person dies without a Last Will and Testament he is known to have died intestate.  In these cases the person’s distributees or next of kin have the statutory right to inherit the estate assets.  Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides the list of individuals who are entitled to inherit the estate.   The New York Probate Lawyer Blog contains numerous articles discussing intestate estates.

Before the estate can be settled an administrator of the estate must be appointed.  Surrogate’s Court Procedure Act (SCPA) section 1001. entitled “Order of priority for granting letters of administration” designates the distributees who have the priority to be appointed as estate Administrator.   Essentially, the priority under SCPA 1001 follows the inheritance rights under

EPTL 4-1.1.

When a person dies without a Last Will and Testament he is said to have died intestate.  In these cases the decedent’s estate is distributed pursuant 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 list of persons who are entitled to receive a share of the intestate estate.  The New York Probate Lawyer Blog contains many articles discussing estate administration.

If kinship is not difficult to determine, the priority list of beneficiaries under EPTL 4-1.1 controls estate distribution.  When a person dies without a spouse or children, his distributees are his parents.  However, under EPTL 4-1.4 entitled “Disqualification of parent to take intestate share”, a parent can be prevented from receiving his share of a decedent’s estate if he either fails or refuses to provide for a child or abandons the child.  Thus, if the parent does not support a child he can lose his inheritance.  An abandonment qualifies for the same result.

While instances of such disqualifications are not common, there are cases where the parent forfeits his rights.  In a Bronx estate case  entitled Estate of Umezurike decided on September 9, 2019 by Bronx Surrogate Nelida Malave-Gonzalez, a father was found to have been disqualified from receiving his share of proceeds from a wrongful death action when his son died.

When a person creates an estate plan he typically prepares a Last Will and Testament.  A Will contains a provision that nominates an Executor.  Thus, in most probate proceedings the selection of the estate fiduciary is not complicated and is controlled by the appointment made by a testator in a Will.

This situation is much different when a person dies intestate – without a Will.  In these cases where the Court is required to appoint an estate Administrator, direction must be obtained from Surrogate’s Court Procedure Act (SCPA) section 1001 entitled “Order of priority for granting letters of administration”.

Pursuant to this statute, the persons entitled to be appointed as Administrator are given priority based upon family relationship.  A spouse of the decedent has first priority, followed by children, grandchildren and then father and mother, brothers and sisters.  A frequent issue that arises in these cases is that there may be multiple individuals in a category who want to act as Administrator and who disapprove of the other applicants.  Since each of these persons has an equal statutory right to be appointed, it is often up to the Court to make a determination as to the appropriate appointee.  This may lead to Estate Litigation in the Surrogate’s Court.

When a Last Will and Testament is filed with the Surrogate’s Court for probate, a number of procedural steps must be followed.  The Will itself is accompanied by a Probate Petition.  The Petition contains essential information regarding the decedent, the date of death, the names of the attesting witnesses, the date of the Will and the estimated value of the probate estate.

Another very important part of the Probate Petition is the listing of names and addresses of all of the individuals and entities that are interested in the estate.  These include the beneficiaries, the named executors and trustees and the decedent’s next of kin (“distributees”).  The distributees are individuals who have a right to object to the Will.  If the Will is found to be invalid, the estate would be distributed to the next of kin according to the laws of intestacy contained in Estates, Powers and Trusts Law section 4-1.1.   The New York Probate Lawyer Blog has provided many articles concerning the probate process and Will Contests.

If a distributee wants to pursue estate litigation and a possible Contested Will proceeding, the procedures contained in Surrogate’s Court Procedure Act (SCPA) section 1404 entitled “Witnesses to be examined; proof required” are followed.

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