Articles Posted in Estate Settlement

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.

After a person dies it is usually necessary to enter the decedent’s residence for various purposes.  To begin with, it may be that the home needs to be searched to see if the person left a Last Will and Testament.  Gaining access to the home may not be difficult if the decedent lived with a spouse or other family member.  However, if the decedent lived alone or voluntary access cannot be obtained, then an application can be made to the Surrogate’s Court for an Order to search the residence for a Will.

There may also be situations where either before or after a fiduciary is appointed, a residence is searched to locate papers and documents relating to the person’s income, assets, debts, business obligations and ordinary bills such as utilities, mortgage, rent or credit cards.

There are a number of important considerations when a residence is searched and the decedent’s personal effects are first reviewed.  If the individual entering the premises is not a duly appointed estate fiduciary he does not have any authorization to remove or otherwise discard any of the decedent’s property.  Additionally, even if the individual has been appointed as Executor or Administrator or Preliminary Executor, extreme care should be taken to inventory and safeguard the contents.

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

Did you know that administering a New York estate can be a very complex matter. Estates can vary in nature. There can be an Administration Estate when a person dies intestate (without a Last Will). There can be a Probate Estate when a person dies with a Will that is admitted to probate in the Surrogate’s Court. In a probate case the Court appoints an Executor. In an Administration case the Court appoints an Administrator.

The New York Probate Lawyer Blog has discussed many issues concerning estate settlement. Each estate can face unique problems that the estate fiduciary needs to anticipate and address. In some matters the decedent may have incurred a lot of debt or other monetary obligations that must be paid out of estate funds. In other situations the estate may be responsible to pay for various taxes related to the decedent. These taxes can be State or Federal income taxes that are due to income prior to the decedent’s death. There may also be income taxes incurred by the estate. Estate taxes may need to be provided for. Both New York State and the Federal government impose estate taxes. In all these matters, the estate fiduciary must be very cautious and make certain that estate liabilities are paid. The fiduciary can be personally liable if these obligations are not properly addressed. Continue reading

A decedent’s estate in New York is comprised of different assets. In many estates the most valuable asset is real estate. The real estate assets can be in the nature of the decedent’s residential property or commercial or business property. It is also common for someone to have owned a condominium apartment or a unit in a cooperative corporation.

Controversies and estate litigation often arises concerning these real estate interests. One common problem that is faced by estate executors or administrators is when the real estate needs to be sold and a third-party or even an estate beneficiary refuses to vacate the property to allow it to be sold. In these cases eviction proceedings in the landlord-tenant Court may be needed. Eviction proceedings can also be commenced in the Surrogate’s Court. The New York Probate Lawyer Blog has discussed these matters in earlier articles. I have been involved in many cases where an estate fiduciary needed to evict beneficiaries from estate houses. Continue reading

The New York probate process is designed so that an Executor can be appointed to handle estate affairs. Until an estate Executor is granted letters testamentary by the Surrogate’s Court, no one has the legal authority to act on behalf of the decedent’s estate. Sometimes, preliminary letters testamentary can be obtained.

Obtaining a duly authorized fiduciary is important since such person can collect bank accounts, pay estate expenses and engage in other transactions to facilitate estate settlement.  Sometimes, the terms of a Will provide that a share of the estate is to be paid to a Trustee. This type of trust is called a testamentary trust. The terms of the trust are set forth in the Will provisions. In order for the transfer of assets from the estate to the trust to occur, a trustee must be appointed to handle the trust administration. Continue reading

An Estate fiduciary such as an Executor or Administrator is responsible for settling a decedent’s estate.    A New York City estate lawyer often refers to Estates Powers and Trusts Law (EPTL) Section 11-1.1 which is entitled “Fiduciaries’ powers”.  Among the authority provided by the statute is the power to settle claims against a decedent’s estate.  The payment of estate creditors is a primary obligation of the fiduciary which must be completed before any distributions can be made to beneficiaries.   If a fiduciary distributes estate assets to beneficiaries before satisfying creditor’s claims, the administrator or executor may be held personally liable to satisfy those debts if the estate does not have sufficient assets remaining on hand to do so.

It is very common for a person to die with unpaid debts or creditor claims. The most common types of unpaid items include credit card balances and mortgages. In a recent article posted at MarketWatch.com by Christine DiGangi dated May 29, 2017 entitled “What happens to your debt when your die?”, it was reported that 73% of decedents had some type of debt at death. Continue reading

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