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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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The planning of an estate in New York has many benefits. The primary goal is to establish documents such as a Last Will, Living Will, Health Care Proxy, Power of Attorney and a Living Trust that provide a definite and unambiguous expression of a person’s desires. With regard to a Last Will, the document should be a careful statement regarding the disposition of estate assets to named beneficiaries. New York Estate Lawyers assist individuals with the drafting and execution of these papers.

As discussed in many posts in the New York Probate Lawyer Blog when a person dies intestate (without a Will), State statutes, such as Surrogate’s Court Procedure Act Section 4-1.1, determine who is to inherit the estate property. Continue reading

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An estate executor or administrator has many obligations with regard to an estate.  The New York Probate Lawyer Blog has discussed in many posts the various powers that an estate fiduciary can exercise.  These powers include the right to collect assets and pay expenses.

However, in addition to the powers to be used to administer an estate, a fiduciary is responsible for various fiduciary duties. For example, an executor has a duty to treat estate fiduciaries fairly. Also, the executor owes a duty of loyalty to the estate and cannot engage in acts considered to be self-dealing. Such conduct might involve taking advantage of the estate to further the fiduciary’s personal interest. For example, New York City estate lawyers are aware that it would be improper for a fiduciary to purchase an estate asset for a price below the fair market value. When an administrator or executor acts improperly, such conduct is viewed as a breach of fiduciary duty. Continue reading

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A Will Contest in New York has been the subject of numerous articles in the New York Probate Lawyer Blog. After a petition for the probate of a Will is filed, notice of the petition must be given to the decedent’s distributees.  The distributees (next of kin) have a right to object to probate. In the event the Will is ultimately denied probate, the decedent’s estate is distributed according to the laws of intestacy.  In such a case a distributee who was disinherited under the Will can receive his intestate share of the decedent’s estate.

When a distributee seeks to challenge a Will he can proceed to obtain information regarding the decedent’s testamentary capacity, the due execution of the Will and whether the Will was the subject of undue influence, fraud or duress. The initial phase of this discovery process is usually performed pursuant to Surrogate’s Court Procedure Act (SCPA) 1404. My blog has discussed this statute on many occasions. Pursuant to the provisions of this statute, the potential Objectants can obtain the deposition testimony of the attesting witnesses and the attorney who drafted the decedent’s Last Will. Also, documents concerning the decedent’s estate plan, finances and health status can be obtained. Continue reading

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The creation and implementation of an estate plan requires the consideration of many factors. Reference is made to the New York Probate Lawyer Blog which contains many articles regarding the planning of an estate.

One of the essential elements in the planning process is obtaining a full understanding and inventory of assets. The reason such an examination is needed is to ensure that assets are transferred in a manner according to a person’s intentions. The primary function of a plan is to be certain that post-death dispositions to beneficiaries occur according to an individual’s desires. New York City Estate Lawyers are familiar with the rules and requirements regarding property dispositions. For example, a Last Will is going to control the disposition of assets that are owned by a decedent in his name alone. However, other assets such as jointly owned accounts or assets that have a designated beneficiary, are going to be paid directly to the joint owner or designee outside of the terms of a Last Will. Continue reading

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One of the more common problems that an executor or administrator may encounter is an unauthorized occupant of a decedent’s real estate. The New York Probate Lawyer Blog has discussed this issue in a number of earlier articles. However, since this matter routinely occurs during the course of estate settlement, a review of the matter is appropriate.

The situation that is typically faced is that when a person dies owning real estate such as a single or multi-family home or property, there may be third-party individuals who continue to reside in the property. These individuals may be other family members or non-family friends or tenants. In a lot of these cases, these occupants do not have any leases or any right to continue occupying the property. Since it is the estate fiduciary’s duty to distribute the real estate to estate beneficiaries or to sell it to effectuate a payment to beneficiaries of their estate share, the fiduciary needs to have all occupants vacate the property. Continue reading

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Probating a Last Will in New York can be an uncomplicated matter. In many situations the probate proceeding is commenced by a close family member who is named as the Executor in the Will. While there are a number of Court and statutory formalities that must be adhered to, the assistance of an experienced New York City Probate Lawyer can facilitate the process.

I have represented clients for over 30 years in all types of probate proceedings both contested and uncontested. The New York Probate Lawyer Blog provides numerous articles discussing the many issues that can arise regarding Surrogate’s Court procedures. Continue reading

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One of the most commonly utilized procedures to assist an estate Executor or Administrator to locate and obtain estate assets are the provisions provided by Surrogate’s Court Procedure Act (SCPA) 2103 and 2104.   SCPA 2103 is entitled “Proceeding by fiduciary to discover property withheld or obtain information” and SCPA 2104 is entitled “Inquiry; trial and decree”.

These two statutes when read together provide a two stage method for the discovery and turnover of any assets that are owned by a decedent. The New York Probate Lawyer Blog has discussed this issue in a number of prior posts. Continue reading

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The identity of a decedent’s heirs at law are an essential element in all probate and intestate administration cases.   There have been numerous posts in the New York Probate Lawyer Blog that examine this issue.  When a Last Will is offered for probate, the person petitioning for the Will’s admission to probate must provide the Court with the names and addresses of the decedent’s distributees (i.e., next of kin).  Distributees require notice of the proceeding because they have a right to object to the Will.

A New York City Estate Attorney typically obtains kinship information from a person when they are preparing an estate plan and Last Will.    This information can sometimes  be invaluable when preparing the probate papers.  It is possible that there are no family members or friends who may have complete family tree information.  If the probate petitioner cannot provide the information on distributees a due diligent search must be made for the next of kin.  This search may require that services of professional investigators such as genealogists be obtained.   Also, the Court may require that a Court Citation be directed to all unknown distributees.  The Citation must be published in a local newspaper. Continue reading

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There are many different aspects to estate administration that requires consideration. The New York Probate Lawyer Blog has pointed out in earlier posts that the estate laws provide certain protections for a decedent’s spouse.

Estates, Powers and Trusts Law (EPTL) Section 5-1.1-A entitled “Right of election by surviving spouse”, contains provisions which require that a surviving spouse receive a share of a decedent’s estate. This share is referred to as the elective share. The statute provides that the elective share is equal to the greater of $50,000.00 or one-third of the decedent’s net estate. Continue reading

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