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When a person dies without a Last Will he is deemed to have died intestate. In cases of intestacy there are numerous facts that must be considered in connection with the appointment of an estate administrator and the settlement of a decedent’s estate. The New York Probate Lawyer Blog has published many articles regarding intestate estates.

At the outset, information regarding the decedent’s next of kin or kinship must be determined. The identity of the decedent’s kinship is needed in order to select the proper person to petition the Surrogate’s Court for Letters of Administration. Kinship will also provide the identity of the persons who are entitled 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 priority for inheritance. The decedent’s spouse and children have first priority to inherit. Continue reading

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The appointment of a Guardian for the personal needs and property management of an incapacitated person is provided by Article 81 of the Mental Hygiene Law (MHL). There are many interesting aspects to Guardianship proceedings. MHL Section 81.02 requires that the Court needs to find clear and convincing evidence that a person is incapacitated.

There are many variations regarding the extent of incapacity of an Alleged Incapacitated Person (“AIP”). Some AIP’s require more assistance with activities of daily living than others. In other words, some AIP’s can function effectively to some extent and, therefore, do not need a Guardian to completely control their activities. Continue reading

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The rights of a surviving spouse have been safeguarded in various provisions of the New York Estate Law. For example, when a person dies without a Last Will his estate is distributed according to the laws of intestacy. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides that the intestate share of a surviving spouse takes priority even where there are surviving children. A surviving spouse receives the first $50,000.00 of the estate plus one-half of the balance.

The New York Probate Lawyer Blog has published many articles relating to the various rights that family members have when a person dies without a Last Will. The intestate administration of a decedent’s estate can be quite complicated especially when issues of kinship exist. Continue reading

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Article 81 of the New York Mental Hygiene Law (MHL) is entitled “Proceedings For Appointment of a Guardian for Personal Needs or Property Management”.   Under this statute, a Guardian can be appointed for a person who is found to be incapacitated.

A determination regarding incapacity must be based upon clear and convincing evidence (MHL § 81.02).   In most Guardianship cases, the Court will review the functionality of the alleged incapacitated person (AIP). This means that there will be an examination of the AIP’s ability to handle activities of daily living such as the ability to handle finances, shop, cook, take care of personal hygiene and other ordinary daily activities. Continue reading

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The estate fiduciary is responsible to collect and protect estate assets. These assets may be bank accounts, retirement funds or brokerage accounts. In many estates the most valuable estate is the decedent’s residence which can be a single family home or a cooperative apartment or a condominium unit.

The New York Probate Lawyer Blog has provided a number of articles discussing the problems that arise when a decedent’s property is occupied by third parties. These occupants can be relatives, friends or just tenants. However, the Executor or Administrator of an estate may need to have the property vacated so that it can be sold. Major disputes and estate litigation arises when the occupants refuse to vacate. Continue reading

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An estate in New York is administered by an Executor or Administrator. These Surrogate’s Court appointees have a fiduciary obligation to collect the decedent’s assets and also to resolve or pay all estate debts and obligations.

It is not always easy when a person dies for the estate fiduciary to determine the nature and extent of the decedent’s debts. There may be a period of time after death when the decedent’s mail and other information needs to be reviewed to see what credit cards, medical bills or mortgage payments are outstanding. The administrator or executor must determine and resolve all of these obligations before the estate can be settled and the net estate funds can be distributed to the estate beneficiaries. If the fiduciary distributes estate assets to beneficiaries before estate claims are resolved, the fiduciary may be personally liable for the payment of these items. Continue reading

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Most people prepare their estate plans and Last Wills and expect that the provisions and directions they set forth can be carried out after death. The rationale for planning an estate is to avoid intestacy which would leave to chance the manner in which an estate is to be distributed. As discussed in many articles in the New York Probate Lawyer Blog, when a person dies without a Will, the New York estate laws provide that the estate is distributed to the decedent’s next of kin. This result may not always reflect a testator’s intent.

When a Will is submitted to the Surrogate’s Court for probate, the estate laws and procedures require that official notice be provided to the decedent’s next of kin. This is because these individuals have a right to contest the Will. If a Will is invalidated, the decedent’s estate is distributed to the next of kin. Continue reading

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The execution of a New York Will must comply with the requirements of the estate statutes. It is important to follow these rules so that the Will be validated and admitted to probate. There have been numerous posts in the New York Probate Lawyer Blog explaining the need for the proper execution of Wills. The basic estate law dealing with this matter is Estates, Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of wills; formal requirements”.

This statute sets forth a number of requirements including: (i) that a Will be signed at the end of the document: (ii) that there be at least two witnesses; (iii) that the testator sign the Will in the presence of the witnesses; and (iv) that the testator declare to the witnesses that he is signing his Will. Continue reading

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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

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When a fiduciary is appointed to administer a decedent’s estate, one of the main objectives is to collect and protect a decedent’s assets. Thus, Administrators and Executors typically search through the decedent’s papers and records to learn about the decedent’s financial estate.

In most cases it is rather straight forward to find bank account statements, brokerage accounts and real estate titles. However, as New York City estate lawyers know, there are many instances when determining and collecting a decedent’s valuable assets can be very difficult. Continue reading

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