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Articles Posted in Estate Settlement

House-Keys-300x200Upon the death of an individual, the process to administer the estate commences.  Sometimes a person leaves a Last Will and Testament.  If there is no Will, then the person dies intestate and the distribution of the estate is subject to the laws of intestacy.  A primary function in administering an estate is to collect and protect estate assets.

One type of asset that is commonly owned by a New York decedent, especially in New York City, is a cooperative apartment.  Ownership of a coop apartment is reflected in the registered name that appears on the stock certificate and also on the proprietary lease.  Therefore, the first consideration in these cases is to examine these documents to determine the nature of the decedent’s ownership.  The stock certificate may be held in the decedent’s name alone or it might be owned along with another person as a joint owner or as a tenant in common.  The nature of the ownership will direct the next steps to be taken.  For example, if the stock is owned as a joint tenancy with rights of survivorship then the ownership of the entire coop will transfer to the survivor on death and no interest in the apartment will be subject to estate administration.

A second consideration concerns the appointment of an executor or an administrator if the coop ownership is part of the decedent’s estate to be administered.  The cooperative management typically will not allow anyone access to or information about the apartment until they are authorized through a Court appointment.  Often the management will not even accept payment of monthly maintenance charges if they are not being paid by an authorized party such as an estate fiduciary.  As a result, it is important to try and obtain letters testamentary or letters of administration as soon as possible.

shutterstock_96626983-300x300It is not uncommon for a person who is domiciled in New York to have the persons who are interested in his estate residing outside of New York.  This situation can occur in a number of contexts.

In the event a decedent created a Last Will and Testament, the document may have designated an out-of-state individual to serve as Executor.  Contrary to some misinformation, there is no prohibition for a person who resides in another state or even another country to serve as a New York estate executor.  Reference should be made to Surrogate’s Court Procedure Act (SCPA) Section 707, entitled “Eligibility to receive letters.”  The statute provides that a non-domiciliary alien is not eligible to serve as a fiduciary.  Thus, if a person resides in New York and is a qualified resident, or is a U.S. citizen and lives anywhere in the world, he would qualify to serve as an executor.  The statute also allows a non-domiciliary alien to serve as a fiduciary as long as they serve with a New York resident co-fiduciary.

The above rules apply equally in the case where a decedent dies intestate.  An out-of-state distributee (next of kin) can qualify as the administrator.  SCPA Section 1001 entitled “Order of priority for granting letters of administration” identifies the persons who can become administrators based upon their relation to the decedent.

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.

All of a sudden you are asked to be the Executor or Administrator of an estate.  Most people have never acted in such a capacity and do not have any experience as to the responsibilities and tasks that lie ahead.  They may be reluctant or even afraid to accept the appointment.  While taking on this role may appear to be daunting, moving forward one step at a time with proper information is the best way to proceed.  Here are a few initial suggestions.

  1. Do Some Research And Seek Professional Guidance. It never hurts to research the internet or other sources to learn about the role of an Administrator or Executor.  An Administrator is appointed when a person dies intestate without a Will.  An Executor is someone who is nominated in a Last Will and Testament. The appointment becomes official after the Will is admitted to probate. Other family members and friends may have been appointed in past matters and they can provide some insight.  Internet sources such as The New York Probate Lawyer Blog contain many articles explaining estate issues.  Also, Estate Lawyers can provide invaluable guidance and insight into the Surrogate’s Court process and how a fiduciary is appointed and estate settlement takes place.  I speak with many people each week regarding and discussing these issues.
  2. Understand The Need for An Estate Fiduciary. The fiduciary is basically the Chief Officer for an estate.  He or she collects the estate assets, pays the bills, taxes and expenses and ultimately distributes the assets to the estate beneficiaries in accordance with the estate laws and documents.  There are numerous fiduciary duties and obligations.  If the decedent owned real estate such as a residence, the fiduciary may need to sell the house and pay off a mortgage.  Bank accounts owned by the decedent need to be closed and an estate bank account must be created. The decedent’s affairs cannot be resolved without proper administration.  I handle all of these matters with my clients.

shutterstock_330039464-300x200The probate process in New York requires that statutory and procedural guidelines be complied with. The statutory framework is contained in the Surrogate’s Court Procedure Act and the Estates, Powers and Trusts Law. Admitting a Will to probate is, in effect, obtaining Court approval that the document is valid and its terms are enforceable as to the disposition of a decedent’s estate. The New York Probate Lawyer Blog contains many articles regarding this process.

When a Will is offered for probate, a petition is filed with the Surrogate’s Court along with the original Will, a death certificate and other required papers. These may include a kinship affidavit and affidavits from the attesting witnesses. Often the original Will has attached to it a self-proving affidavit that was signed by the Will witnesses at the time of the execution of the Will.

While most probate cases proceed without complications or unnecessary delay, there are many instances where problems arise that can sidetrack or prevent the completion of the Court determination of validity. One major hurdle may be in the form of a Will Contest. A Will may be contested for lack of due execution, lack of testamentary capacity, undue influence or even forgery. Another problem that may be encountered is proof of kinship. The statutes require that notice be given to all of the decedent’s distributees (next of kin). Such notice is usually in the form of a Citation, which is like a summons that requires the recipient to appear in Court and state whether they are going to challenge the Will. Sometimes, it may be difficult to determine the identity or location of a decedent’s next of kin.

shutterstock_204507106-300x254When an Executor or Administrator is appointed by the Surrogate’s Court, the job of estate settlement begins. One of the first orders of business is identifying and collecting the assets of the estate.

The New York Probate Lawyer Blog has discussed the issue of asset protection and collection on many occasions. One of the primary sources of information in this regard is the financial records maintained by the decedent. Typically, the decedent will receive bank statements, brokerage statements and other correspondence that reflect values and other ownership information. Another excellent place to look for evidence of estate assets is the decedent’s prior income tax returns. These documents may contain the names of banks or other sources of dividend or interest income. The tax returns may show ownership rights in real estate, corporations, limited liability companies or partnerships.

Earlier articles in this Blog have referred to Surrogate’s Court Procedure Act Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information.” This statute provides the Administrator or Executor with a legal procedure to obtain verification from third parties who may be withholding or otherwise refusing to give up information concerning possible assets that were owned by a decedent. SCPA 2103 requires that a petition be filed with the Surrogate’s Court and a hearing be held before the Court to obtain the requested relief. While it may take time and effort to commence estate litigation and prosecute these proceedings, there can be very positive results for an estate if property is located and recovered. As an estate lawyer in New York City, I have been involved in numerous SCPA 2103 cases. The Surrogate’s Courts throughout New York are very familiar with these matters and recognize their importance for the successful settlement of an estate.

One of the most important fiduciary duties of an Executor or Administrator is locating and recovering estate property. The assets of the decedent must be secured so that they can be distributed to estate beneficiaries. Assets are also needed to pay estate expenses such as deb

Sometimes it is difficult to collect the items that were owned by the decedent. This may be due to a number of factors. One issue that arises quite often is that assets are transferred to third parties shortly before death. This raises questions as to the validity of the transfer. It may be that the decedent lacked the capacity to enter into the transaction or was unduly influenced or the subject of a fraud. In all cases, the fiduciary is obligated to investigate the circumstances behind the transfer and, where appropriate, attempt to recover the assets for the benefit of the estate. This usually involves estate litigation in the Surrogate’s Court. The New York Probate Lawyer Blog has posted many articles concerning recovery of assets and estate litigation.

A recent Queens estate case decided by Queens Surrogate Peter Kelly on October 18, 2019 entitled Matter of Kokotos, provides a good example of the issues presented when there are pre-death transfers. In Kokotos the decedent owned an interest in a Limited Liability Company which owned real estate. Shortly before the decedent’s death, her son, by using a Power of Attorney with a Statutory Gifts Rider, transferred the decedent’s interest in the LLC to the son’s wife. Thus the entire real estate interest was not a part of the decedent’s estate at death.

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.

The settlement of a decedent’s estate involves numerous activities.  When a person is appointed as the Administrator or Executor of an estate, one of the most important fiduciary duties is to locate and collect the assets that were owned by the decedent.  In some estates this task can be uncomplicated.  If the decedent owned bank accounts, real estate or funds in  a financial institution which the Executor or Administrator was aware of, the various forms and transfer papers can be prepared to facilitate the liquidation and collection of the assets.

However, there are many estates where the identification and collection of estate assets is not so clear or simple.  There may be many difference issues that can delay or prevent recovery.  To begin with, it may be difficult to locate or identify estate property.  The decedent may have kept poor or confusing records.  Also, some assets may be held in on-line accounts or in the name of corporations or other entities in which the decedent had an interest.

Additionally, even where assets can be located, there may be disputes with third parties regarding ownership.  The New York Probate Lawyer Blog has posted a number of articles regarding the recovery of a decedent’s assets.

New York estate settlement involves many different types of rules and statutes.  When a person dies the first question to be asked is whether the decedent had a Last Will and Testament or whether he died intestate.  Once this fundamental issue is established either a probate petition or a petition for Letters of Administration can be filed with the Surrogate’s Court.

The New York Probate Lawyer Blog has published numerous articles concerning the need to provide the Court with all the names and addresses of a decedent’s next of kin.  It is not uncommon for kinship information to be missing or difficult to obtain.  Sometimes the services of a professional genealogist are needed to track down missing heirs.  Also, the Surrogate’s Court may require that a kinship hearing be held to determine the status of individuals claiming to be a decedent’s distributees

While finding lost heirs is important, there are situations when determining the status of a possible decedent arises.  The problem is showing whether this person is alive but just avoiding contact, or whether, in fact, the person is deceased.  During this period of uncertainty, the missing individual’s affairs and assets are in limbo and not being attended to.

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