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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

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

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

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

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

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

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

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

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

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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