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There are a number of different types of papers and considerations that are involved in estate planning. It is important that the documents appear clearly and express a person’s directions and intentions. An estate plan can include a Last Will and a Living Trust. Also, advance directives such as a health care proxy, living will and power of attorney can be put into effect.

Planning documents often include the use of a trust. A trust can be created in a Last Will. This type of trust is a testamentary trust. When a Will is admitted to probate, this trust becomes effective and the Surrogate’s Court appoints a testamentary trustee. Continue reading

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One of the most important aspects when administering an estate is establishing the identity of a decedent’s next of kin. The persons comprising next of kin or heirs are commonly referred to in New York as “distributees”. Surrogate’s Court Procedure Act (SCPA) Section 103(14) defines a distributee as a person who would be entitled to receive part of a decedent’s property pursuant to the statutes regarding “descent and distribution”.

The New York Probate Lawyer Blog has published numerous posts regarding kinship. In a probate proceeding, distributees of a decedent must be ascertained and provided notice regarding the probate of the Last Will. This is because the distributees must be given the opportunity to Contest the Will. Continue reading

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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

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The estate of a decedent is distributed in two basic ways. If a person dies with a Last Will and Testament, once the Will is admitted to probate, the Will provisions determine the distribution. When a person dies without a Last Will, then he is considered to have died intestate. An intestate estate is distributed to the decedent’s next of kin according to Estates, Powers and Trusts Law (EPTL) Section 4-1.1.

The New York Probate Lawyer Blog has previously reviewed statutory provisions known as a Right of Election. This law is contained in EPTL Section 5-1.1-A. A Right of Election gives a surviving spouse the right to receive a share of a decedent’s estate even if the spouse is disinherited. For example, if a decedent leaves a Last Will and makes no provision for the surviving spouse, the spouse can file a Right of Election with the Surrogate’s Court. The statute provides that the spouse is entitled to receive the greater of $50,000.00 or one-third of the decedent’s net estate. In these cases, when the Executor is ready to settle the estate, he will calculate the spouse’s Right of Election share for distribution even though there is no provision made in the Will for the spouse. Continue reading

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The Guardianship law in New York is found in Article 81 of the Mental Hygiene Law (MHL). The Court may appoint a Guardian if it finds that a person is incapacitated. However, incapacity is not always easy to determine or prove.

New York City Guardianship Attorneys typically review Section 81.02 of the MHL. This section sets forth that any decision by the Court regarding incapacity needs to be made upon clear and convincing evidence. This evidence can be easy or hard to obtain. In some cases where a person has suffered a severe injury or illness it is apparent that the person would probably suffer harm without a Guardian since he cannot provide for his own personal needs or property management. An example would be where a person is unconscious or completely immobilized or unable to engage in any activities of daily living. Continue reading

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When a person dies there are many issues that can affect the settlement of his estate. Initially, it must be determined wither the decedent had executed a Last Will. If so, then a probate proceeding is to be filed in the Court. In the event the decedent died intestate (without a Last Will), then an Administration proceeding is filed.

Another primary issue that needs to be considered is whether the decedent was a domiciliary of New York. Domicile is defined in the Surrogate’s Court Procedure Act (SCPA) Section 103(15) as a person’s principal fixed and permanent home. Domicile is important because generally the New York Courts only have jurisdiction over the estates of a person domiciled in New York at the time of death. A person may have numerous residences but he can only have one domicile. The New York Probate Lawyer Blog has discussed this issue in earlier posts. Continue reading

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A fiduciary of an estate refers to an Executor or Administrator. The estate fiduciary can be removed if he breaches his fiduciary duty. The Surrogate’s Court Procedure Act (SCPA) contains a number of provisions concerning the circumstances in which a fiduciary can be removed.

SCPA Section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct” provides a number of grounds whereby a fiduciary can be removed. The New York Probate Lawyer Blog has posted numerous articles regarding the breach of fiduciary duty and the revocation of letters of testamentary or letters of administration. Continue reading

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When a person dies without a Last Will, he is considered to have died intestate. The process to appoint a fiduciary for an intestate decedent is known as an Administration Proceeding.   At the conclusion of this type of case the Surrogate’s Court will appoint an Administrator. This is in contrast to the situation when a person dies and leaves a Last Will and the Court appoints an Executor in the Probate proceeding. The New York Probate Lawyer Blog has posted many articles about Probate and Administration.

Administration proceedings can have many complex issues. The persons who are entitled to be appointed as an Administrator are set forth in Surrogate’s Court Procedure Act (SCPA) Section 1001. This statute provides a list of the priority for appointment as the estate fiduciary. Continue reading

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Estate planning is an important part of overall financial management. The preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust can provide a clear expression of a person’s desires regarding property disposition and personal affairs.

Once a Last Will and other documents are prepared and executed, it is important to safeguard them. Such papers can be maintained in a secure filing cabinet or personal safe. Sometimes these papers are held in the office of an attorney or placed into a safe-deposit box. While a safe deposit box may limit or inhibit their accessibility in situations of death or disability, the papers are secure. Nevertheless, alternative methods of storing estate planning papers may be more efficient for having them accessible when needed. Continue reading

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One of the primary duties of an estate Executor or Administrator is to collect estate assets. Most of the time this activity is not complicated. For example, a fiduciary may just need to close the decedent’s bank account or brokerage account and deposit the funds into the estate bank account.

Sometimes this process can be more complicated, especially when the decedent’s assets are being withheld by a third party. This claimant may assert that he owns the property and that the decedent has no right to recover it. In other cases, the claimant may deny having the property in his possession. Continue reading

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