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Probate of a Will in New York is primarily controlled by the various estate laws. These statutes are part of the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).   The probate process has been examined in many of the articles appearing in the New York Probate Lawyer Blog. When a person dies and leaves a Last Will, a petition for the probate of the Will is filed in the Surrogate’s Court. The petition contains information regarding the decedent, his address, the name of the petitioner, the date of the Will, the names of the attesting witnesses to the Will, the approximate value of the estate and the names and addresses of the persons interested in the estate.

The petition is filed with the Court along with an original death certificate, the original Will and other mandated documents. Kinship affidavits may also be required. Continue reading

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There are many different types of ownership interests that a decedent may have. Prior to death, a person may have acquired real estate in the form of a single family home. Similarly an individual may have been the owner of a cooperative apartment or a condominium unit. Each of these property types are assets that a decedent’s estate may need to administer as part of estate settlement.

It is very common though, especially with New York City Estates, that a decedent was a tenant pursuant to a lease in a residential apartment at the time of death. In these situations, the decedent’s family, or executor or administrator must understand various rules that effect the estate’s interest in the rental apartment. Continue reading

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There are many great reasons to create an estate plan. The New York Probate Lawyer Blog has published many posts discussing the basics of estate planning. Preparing and signing documents such as a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust allows a person to specifically set forth their property disposition and health care goals. An article that was published by Consumer Reports on April 14, 2015 entitled “6 Costly estate planning, minefields, and how to avoid them”, provides a number of important planning considerations. For example, one of the points in the article cautions a person to know and understand the nature of their assets that would actually be controlled by a Will. Assets that pass to others by operation of law such as joint assets would not be subject to the Will provisions.

Once the decision is made to prepare a Last Will, it is imperative that the document itself and its execution be done to withstand a possible Will Contest. The New York Estates, Powers and Trusts law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides the statutory requirements for properly executing a Last Will. If these provisions of the law are not adhered to, a person’s estate plan may collapse due to a Contested Will. Continue reading

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The preparation and signing of Wills in New York is an important part of the estate planning process. Creating documents such as a Last Will, Living Will, Health Care Proxy and Living Trust is an important first step in expressing a persons intentions for property disposition and personal care management.

As part of the process of implementing these important documents, it is essential to obtain proper guidance and supervision regarding the preparation and execution of such papers.  The New York Probate Lawyer Blog has posted many articles describing cases where Wills have been the subject of Will Contests, especially where questions arise as to the manner in which the Will signing took place.  Also, there are many instances where Estate Litigation has occurred due to provisions or clauses in Trusts or Wills that are confusing or ambiguous.  Obviously, seeking the assistance of an Estate Lawyer to help with the drafting and preparation of planning papers can diminish the possibility of a lawsuit by a disgruntled relative who has been disinherited.  Also, following the statutory mandates for Will execution  insures that the intentions of a testator can be fulfilled and that a validly prepared Will can be admitted to probate. Continue reading

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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

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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

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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

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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

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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

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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

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