New York Probate Lawyer Blog

January 25, 2017

A New York Death Certificate Is Important in Estate Cases

One of the most important papers that are part of all estate cases is a death certificate. While this statement appears obvious, the presentation of the certificate to the Court and the information contained therein can create roadblocks and issues that need to be overcome. A New York City estate administration lawyer is familiar with the Court requirement that a death certificate must be presented to the Court when a petition is filed seeking to probate a Last Will or to obtain letters of administration.

One problem presented with the need for the certificate is that sometimes there is a delay in obtaining the certificate. Typically, in New York City estates, the local funeral home obtains certified copies of the certificates from the New York City Department of Vital Records. However, this may take some time. Additional issues may arise if the decedent, who may have been a New York resident or domiciliary, dies out of state. I have seen many instances where a person dies out of state. When this occurs, the New York Surrogate’s Court often requires an affidavit explaining the reason for the decedent being out of state and showing that the decedent was a New York domiciliary. Continue reading

January 18, 2017

A New York Last Will Should Be Kept in a Secure Location

by Jules M. Haas

One of the most important papers that are prepared in estate planning is a Last Will and Testament. A lot of time and effort can be spent when finalizing a Will. The process includes many items, such as (i) reviewing and understanding the assets that are to be a part of the plan; (ii) determining the persons who are to be estate beneficiaries; (iii) considering the amount of a bequest or the share of the estate that each beneficiary is to receive: (iv) deciding upon whether a beneficiaries’ share is to be paid outright or held in a trust for the beneficiaries’ benefit; (v) examining whether there are any tax planning provisions that can help save estate or income taxes; and (vi) choosing persons that may act as executors or trustees. The New York Probate Lawyer Blog has provided a great many articles regarding Wills and estate planning. Continue reading

January 11, 2017

The Disqualification Of A New York Executor Requires Definitive Proof Of Ineligibility

by Jules M. Haas

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

January 4, 2017

New York Will Contests Require Discovery of Information

by Jules M. Haas

Probating a Will in New York is usually not a contentious process. The original Will is filed with the Court and typically the person named in the Will as the Executor prepares and files a Probate Petition. When a Will is admitted to probate, the Court issues Letters Testamentary to the petitioner. This document provides the executor with the authority to administer the decedent’s estate.

As discussed in prior posts in the New York Probate Lawyer Blog, all of the decedent’s next of kin (“distributees”) must be given notice of the probate proceeding. Each distributee has a right to object to the Will. The procedures involved with Will Objections necessitate that all of the parties engage in a discovery process so that the Court can be presented with facts regarding the validity of the Will.
Continue reading

December 28, 2016

Estate Taxes Are Always A Consideration In Estate Settlement

by Jules M. Haas

The executor or administrator of a New York estate is required to consider many factors when administering an estate. One of the items that the fiduciary needs to review is whether estate taxes need to be paid.

In the year 2017 the Federal Estate tax exemption is $5,490,000. New York State also imposes an estate tax and the 2017 exemption after April 1, 2017 is $5,250,000. While many estates appear not to be subject to the tax, it is necessary that all of the decedent’s assets be properly valued in order to avoid a possible claim by the taxing authorities that a tax or additional tax must be paid. The estate tax must be paid and a return filed within 9 months after the death of the decedent. While an extension to file the return can be obtained for 6 months, any non-payment or underpayment of the tax can result in the imposition of substantial interest and penalty charges. It is not unusual for the Internal Revenue Service or local tax authority to require an audit and to claim that estate assets have been undervalued. This is especially true with business interests and other hard to value assets such as artwork. Continue reading

December 21, 2016

New York Will Contests Allow Discovery of Information

by Jules M. Haas

In most instances the filing of a Last Will for probate is a straight forward process. The New York Probate Lawyer Blog has posted many articles regarding the probate of a Will. The typical persons who petition the Court in these proceedings are close relatives such as a spouse or children. Moreover, it is rather common that the Will beneficiaries are the same close relatives and that all of these individuals receive benefits under the Will provisions.

For example, a familiar scenario is a Last Will in which the decedent leaves his entire estate to his spouse if the spouse is living and if the spouse is not alive, then equally to his children or descendants. Continue reading

December 14, 2016

A New York Compulsory Accounting Can Help Finalize Estate Settlement

by Jules M. Haas

There have been numerous posts in the New York Probate Lawyer Blog which describe the basic process to settle an estate. A brief review of these facts is always helpful:

1. First it is essential to determine whether the decedent died leaving a Last Will or without a Will (intestate). The existence or non-existence of a Will determines whether the procedure to be followed in Court involves the probate process or intestate administration.

2. Once the process to be followed is ascertained, an appropriate petition and other papers need to be prepared and filed with the Surrogate’s Court.

3. After all necessary estate papers have been filed with the Surrogate’s Court and the Court has approved the filing, an Executor or Administrator will be appointed. The fiduciary is granted Letters Testamentary in the case of a probate and Letters of Administration when a decedent dies intestate.

4. Once appointed, the Executor or Administrator begins the process of estate settlement by collecting the decedent’s assets and paying the decedent’s debts and obligations along with estate administration expenses.

5. The final stage of the estate is providing a payment of the net estate funds and assets to the beneficiaries. Typically, the fiduciary will prepare an accounting of the assets collected and payments made and provide this accounting statement to the beneficiaries so that they can review the basis for the distribution being made to them. Continue reading

December 7, 2016

New York Estates Can Be Settled By An Administrator c.t.a.

by Jules M. Haas

When a person dies leaving a Last Will and Testament the Will is typically filed with the Court in the probate process. An essential provision in a Will is naming the persons to be appointed as Executor. The Executor is the person who is responsible for estate settlement such as the collection of assets, the payment of estate debts and expenses and distributing the net estate to the Will beneficiaries.

The provisions of a Will should not only name the Executor, the Will should designate a substitute or successor Executor in the event the primary person nominated cannot act as the fiduciary. It is not uncommon that the primary named Executor needs to be replaced. This can result from a number of reasons such as the primary fiduciary is deceased or ill or refuses to accept the appointment. When the first named Executor does not act as the fiduciary, the Court will appoint the named substitute. Continue reading

November 30, 2016

New York Estate Litigation Requires the Disclosure of Information

by Jules M. Haas

When a decedent dies his estate is subject to the process of either probate or intestate administration. It is not uncommon that in either situation there may be many issues that require estate litigation in the Surrogate’s Court. These controversies can take many forms such as Will Contests, Kinship Hearings and Contested Accountings.

Estate lawyers are familiar with the Court procedures that are involved with such proceedings. One of the commons aspects of estate disputes is that parties are entitled to discover information from the opposing party and others concerning the issues involved in the case. Continue reading

November 23, 2016

New York Estates Require Proof of Kinship and Marital Status

by Jules M. Haas

Kinship disputes are very common in New York estate cases. When a person dies his estate typically can be settled in one of two ways. If the decedent left a Last Will, the Will is offered for probate in the Surrogate’s Court.

In the event the decedent dies intestate (without a Will) then a petition for Letters of Administration is presented to the Court. An Executor or Administrator is appointed depending upon the type of Court proceeding. Continue reading