Estate planning in New York encompasses many types of considerations. The most common way to plan an estate is to prepare a Last Will and Testament. When a person dies, a Will must be filed with the Surrogate’s Court to be validated. This is known as the probate process. Probating a Will involves filing a petition with the Court. All of the decedent’s next of kin must be given notice of the proceeding. Most probate matters are rather routine, and the Will is admitted to probate, and letters testamentary are issued to the nominated executor. The New York Probate Lawyer Blog contains many posts dealing with estate administrators and estate settlement.
Sometimes a person desires to avoid probate. There can be many reasons for avoiding a Court proceeding. One of the main goals is to avoid a possible Will contest. Another reason may be to prevent a search for next of kin who may need to receive notice in the probate case.
The creation of a Living Trust or a Revocable Trust is a means by which assets can be transferred without the need to probate a Will. In order for a Living Trust to be effective, all of the grantor’s assets must be transferred into trust ownership. This transfer is easy for financial accounts where the title of the account can be changed into the name of the grantor as trustee of the trust. Other assets, such as real estate or the ownership of a cooperative apartment, may be more complicated. As to real estate, a deed and other transfer documents must be prepared and filed with the appropriate county office to show the transfer of the ownership into the trust. Tax forms and other recording papers and fees need to be properly accounted for.
Transferring a cooperative apartment into a Living Trust involves some special requirements. The approval of the cooperative management or board is required. This is because the ownership stock certificate and proprietary lease needs to be changed to reflect the trust ownership. Most cooperative corporations will allow a transfer to a trust. However, the cooperative typically needs the apartment owner to execute various documents prepared by the cooperative whereby the owner agrees to be personally responsible for the use and occupation of the apartment. In many instances the cooperative will charge a fee for the transfer and the cooperative attorneys assess a fee for the preparation of documents. The costs for a cooperative transfer can be thousands of dollars. Various tax and other forms must be prepared, as well.
Another consideration, when transferring real estate into a trust, is whether there is an existing mortgage on the property. If so, the consent of the mortgage company will be needed to finalize the transfer.
Creating a Last Will or Living Trust involves a lot of consideration and planning. I have represented clients regarding their estate plans, property transfers, and estate settlement. If you have a question or issue regarding an estate or guardianship matter, Call Me Now for a free confidential review. We offer reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.