Planning an estate in New York requires that numerous factors be considered. The testator or creator of a Last Will or Trust should begin by making a complete inventory and review of his assets.
The New York Probate Lawyer Blog has many posts which discuss various rules regarding the disposition of assets. In its most simplest form, assets that are owned by a decedent in his name alone generally are controlled by the provisions in a Will. However, assets that are owned in joint names with rights of survivorship or which have designated beneficiaries such as life insurance or retirement funds, pass automatically and outside of a Will to the designated owner. Therefore, in order to effectively engage in estate planning, a person must know and understand his assets and the manner in which they are owned. Continue reading
An estate in New York requires the appointment of a fiduciary. Executors or Administrators are the fiduciaries who control estate settlement. Executors are appointed when there is a Last Will to be probated. Administrators are appointed when a person dies intestate (without a Will).
There are many instances when the initial probate proceeding or administration proceeding cannot be completed without extensive delays. A very common example of such a situation involving a delay is a Will Contest. When a Probate Petition is filed with the Surrogate’s the estate laws require that notice be given to the decedent’s next of kin. The New York Probate Lawyer Blog has published many posts regarding the probate procedures and the notices that must be given to family members. This notice is typically in a form called a Probate Citation. Continue reading
Estate Litigation in New York can arise in connection with many different issues. The Surrogate’s Court is a forum in which matters concerning decedents’ Wills and Trusts are typically dealt with. The New York Probate Lawyer Blog has discussed in many posts the various documents that comprise a persons estate plan. These papers include a Last Will, Living Will or Revocable Trust, Health Care Proxy and Living Will.
It is common that a person may create a Living or Revocable Trust along with what is known as a pour-over Will. Briefly stated, the main reason for the creation of a Revocable Living Trust is to avoid probate. Also, the trust provides a means for property management in the event the trust Grantor becomes disabled. Continue reading
Estate Attorneys in New York are routinely consulted with regard to issues concerning the rights of a surviving spouse. These matters become more complex when one of the parties has had a former marriage. It is even more complicated where there are children from the prior marriage.
The estate laws in New York and the estate tax laws generally seek to provide protection and advantages for spouses. For example, Estates, Powers and Trusts Law Section 5-1.1-A entitled “Right of election by surviving spouse” provides that a surviving spouse has a right to inherit a share of a deceased spouse’s estate. Essentially, the law is intended to prevent a surviving spouse from being disinherited. Continue reading
The process of administering an estate can be very complex. Estate Lawyers are familiar with the many issues and obligations that an Executor or Administrator may need to consider. As discussed in numerous posts in the New York Probate Lawyer Blog, an estate fiduciary has the obligation to find and collect all of the estate assets. Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciary powers” sets forth the tasks that a fiduciary can perform including collecting and investing assets.
Sometimes it is not easy to determine and access property that is owned by a decedent. There are many cases where a person prepares a Last Will but places assets into joint ownership. Such joint ownership property is not controlled by the Will provisions. The joint assets are transferred to the surviving joint owner upon the decedent’s death notwithstanding contrary provisions in a Last Will. Generally, only assets that are titled in the decedent’s name alone end up being controlled by a Will. It is not uncommon to find out after a decedent dies that shortly before death, many assets were transferred to joint accounts and, therefore, pass to owners outside of the controlling Will provisions. Continue reading
fundamental aspect of estate cases in Surrogate’s Court is that all necessary persons be given proper notice of the proceedings. For the most part, individuals who are interested parties are the decedent’s next of kin or distributees.
Many posts in the New York Probate Lawyer Blog discuss the need to prove or demonstrate a person’s kinship to a decedent. In probate cases, the probate petition that is filed with the Court must list all of the decedent’s distributees. These persons must receive notice of the probate proceeding since they would have a right to Contest a Will if they felt that the probate was improper. Among the various grounds to contest a will are lack of due execution, lack of testamentary capacity and undue influence. Continue reading
The planning of an estate in New York involves a number of basic considerations. Many recent articles in the news have drawn attention to the need for creating an effective plan. The New York Probate Lawyer Blog has also published numerous posts regarding the planning and administration of estates.
A recent post by Kelli B. Grant on September 16, 2016 entitled “Don’t Make These Celebrities’ Estate-Planning Blunders” points to a number of basic areas that everyone should review regarding their planning needs. In her article, Ms. Grant reports that even the rich and famous fall victim to even the most basic problems. For example, the article refers to the recent death of the rock star Prince who failed to prepare a Last Will. Ms. Grant lists other notables such as Sonny Bono, Jimi Hendrix and Pablo Picasso who also neglected to memorialize their desires in a Will. Continue reading
Estate Planning Attorneys in New York are familiar with the creation of Last Wills and Trusts in which primary and alternate Executors and Trustees are named. One of the main advantages to creating a Will or Trust is that the creator can select the persons he wants to act as a fiduciary to carry out his asset distribution directions in accordance with his intentions.
As discussed in many posts in the New York Probate Lawyer Blog, if a person dies intestate (i.e., without a Last Will) then the estate administrator is selected according to the statutory priority set forth in SCPA Section 1001. Continue reading
New York Estate Planning requires that the creator of a Will or Trust clearly set forth his intentions. It is very important that a Last Will or a Trust clearly state the manner in which a person wants his assets to be distributed. Serious problems arise when a Trust or a Will contain language that is ambiguous or provides for dispositions that have a negative impact on the estate plan. One way to avoid these complications is to prepare the documents using clear and direct language. Also, the creator and the estate attorney should review the papers a number of times before they are finalized and signed. However, all potential problems cannot always be prevented. A number of recent Court cases provide examples where Trust language can have a costly effect on Trust administration. Continue reading
Estate Lawyers in New York are familiar with the various statutes that provide executors and administrators with powers to administer an estate. Estates, Powers and Trusts Law (EPTL) Section 11-1.1 entitled “Fiduciaries’ powers”, sets forth many of the matters that a fiduciary can engage in to facilitate estate settlement. For example, under EPTL 11.1.1, the fiduciary can invest and sell estate property. He can also settle or contest claims either for or against the estate.
The New York Probate Lawyer Blog had posted a number of articles concerning the ability of an executor or administrator to commence proceedings in Surrogate’s Court to obtain the turn-over of estate property from third parties who are withholding the property from the fiduciary. These types of proceedings are governed by Surrogate’s Court Procedure Act (SCPA) Section 2103 (“Proceeding by fiduciary to discover property withheld or obtain information”) and SCPA 2104 (“Inquiry; trial and decree). Continue reading