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Articles Posted in Executor/Administrator

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.

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The distribution of a decedent’s estate is controlled either by a Last Will and Testament or by the laws of intestacy. When there is no Last Will, Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” determines the individuals who are entitled to a share of the estate assets. These individuals are the decedent’s next of kin or distributees.

In many intestate estate cases, it is difficult to determine the identity of the distributees. A person’s next of kin may be remote relatives such as cousins. If the family was estranged, the members may have lived in many different states or countries and have had no contact with each other for generations. The Surrogate’s Court and the New York estate laws require that complete kinship information be presented in the form of death certificates, birth records, marriage records and other documentation to demonstrate kinship. New York Estate lawyers help with kinship hearings and estate litigation when heirship is unclear. The New York Probate Lawyer Blog has posted many articles concerning kinship. Call me now if you have a kinship question.

Another aspect of intestacy is the appointment of the estate administrator. If there is a Will, the Court would appoint an executor. When there is no Will, the Court appoints an administrator. Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of Priority for granting letters of administration” sets forth the persons who have the right to be appointed as the administrator. Essentially, these are the same individuals who have rights as distributees.

When a person dies and leaves a Last Will and Testament, it is necessary to commence a Probate Proceeding to validate the Will. Once the proceeding is complete, the Court admits the document to probate and letters testamentary are issued to the petitioner. The person who files the petition with the Court for probate is typically the individual nominated in the Will.

Probating a Will requires the submission of numerous documents and information including the names of all of the decedent’s distributees (next of kin) and an estimated value of the probate estate. Estate lawyers in New York are familiar with the Surrogate’s Court rules and requirements regarding probate.

Sometimes the full probate can be delayed due to various issues. If an interested person is seeking to Contest the Will then the final determination regarding the validity of the Will may take months or years. The New York Probate Lawyer Blog has published many articles regarding Probate and Will Contests.

Estate planning in New York is an important consideration for all individuals. When a person dies, assets are disposed of according to the laws in New York. If property passes upon death by operation of law then named beneficiaries or joint owners become the owners. Where assets are held in the sole name of the decedent with no beneficiary and there is no Last Will and Testament, the intestate estate is distributable to a decedent’s next of kin. However, the distribution of these same assets owned solely with no beneficiary can be controlled by the terms of a Will. The New York Probate Lawyer Blog has discussed estate planning in many articles.

In the case of a small business owner, particular care and examination must be made as to the consequences of the death of the owner.

To begin with the business owner must assess the nature of the business assets. Is the ownership interest in the form of stock or shares held in a corporation or a membership interest in a limited liability corporation? Perhaps the owner is a partner in a partnership or possibly, there is no actual business entity.

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.

Creating a Last Will involves a number of considerations. A person should take an inventory of his assets including the value of each and the type of ownership. It is important to know if the asset is owned in the person’s individual name, or is a joint asset or payable on death to a designated beneficiary.

Also, decisions need to be made concerning the identity of the beneficiaries to be named in the Will, as well as the amount of the bequest each is to receive. An Estate Lawyer in New York City can be helpful with creating a plan and understanding the nature and effect of asset ownership and Will provisions. Continue reading

When a person prepares an Estate Plan and a Last Will and Testament one of the important decisions to be made concerns the selection of an Executor. A Last Will contains a provision in which the testator nominates an Executor. It is also important to nominate a successor or alternate Executor in case the primary nominee is unable to serve as a fiduciary. A Will may also contain a provision appointing testamentary trustees if the testator created a testamentary trust in the Will.

The person selected to act as the Executor can be anyone that the testator wants to be in charge of estate administration. The person selected is typically a family member or friend. There is no requirement that the Executor have any experience or expertise in handling estate matters or have any financial background. There is also no requirement that the Executor be living in New York. The fiduciary has the authority the obtain the services of professionals such as attorneys, accountants and investment advisors to help with the various tasks regarding settlement of the estate. Continue reading

One of the reasons for a person to engage in Estate Planning and to prepare a Last Will is to provide a nomination in the Will for Executors and Trustees. When a person dies intestate (no Will) the estate laws designate the persons entitled to act as administrator. The New York Probate Lawyer Blog has published many articles regarding estate planning and estate administration.

Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of priority for granting letters of administration” provides the list of individuals (i.e., spouses, children) who have the priority to be appointed as the estate fiduciary.  In many instances, the individuals who have the statutory right to be appointed administrator may not have been the choice the decedent would have made. Continue reading

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