ESTATE ADMINISTRATION
New York Probate
Many issues and challenges can arise after a family member passes away. In addition to dealing with their legal and financial obligations, families must manage their grief and sadness over a loss of a loved one.
Clients frequently express concern that probate will be time-consuming and costly, or that those in charge will not act in the best interests of the estate. However, if probate is handled properly, it can be effective, and the costs can be minimized.
What Is Probate?
In New York, when there is a last will and testament, all estates must go through the legal process known as "probate," which includes a court ruling on the will's legality. In the absence of a will, the process is known as "administration." Generally speaking, "probate" refers to the legal process of appointing a representative to manage a decedent's estate in accordance with their wishes. Transferring assets from the estate of a deceased person into the name of the living is the primary goal of probate. The assets of an estate will be put on hold while a judge decides whether the Will, assuming one was left behind, is valid. The estate of the deceased is administered following the will's probate. The probate court uses this procedure to make sure that any remaining assets go to the beneficiaries of the deceased while also making sure that the estate's creditors are paid through estate settlement.
Legal Guidance for New York Executors and Administrators
The administration process can be tedious, due to numerous statutes and regulations. There are many duties that an Executor or Administrator must carry out including filing all necessary paperwork in the correct order and by specific deadlines. If you have been appointed as an Executor or Administrator, an attorney who specializes in estate administration can be retained to provide guidance. It is generally advisable to hire an attorney for larger estates, however, smaller estates can also benefit from an administration attorney who has the experience required to address issues that may arise during the administration process, such as valuing assets and handling the necessary court filings.
Fattore Law provides full-service handling of probate and estate administration to clients residing in New York, and out-of-state appointed representatives of NY estates, valued at $250k and up. Our estate administration services are for a variety of matters including:
Preparation of Petition for Probate; Appointment of Executor; Preparation of Petition for Letters of Administration; Appointment of Administrator; Preparation of Petition to Settle the Account of an Executor or Trustee; Preparation of Petitions by An Executor to Settle Personal Injury and/or Wrongful Death Actions on Behalf of An Estate; Estate Tax Return Preparation (out-sourced to our affiliate CPA); Legal Advice about Estate and Gift Tax Audits (out-sourced to our affiliate CPA).
Estate Administration If There’s No Will: Intestate Succession
New York Law for Intestate Succession
When there is no will to name an executor, it’s said that they died intestate. When a person dies intestate, that person’s property is distributed according to New York law.
What each living relative receives depends on their relationship to the deceased, also called the “Decedent”. When there is no will, the family members entitled to a share of the estate are called “distributees”. New York law www.nysenate.gov/legislation/laws/EPT/4-1.1 provides the following:
The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses, and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows:
(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.
(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issues more remote than grandchildren of such grandparents.
(7) Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one-half to the great-grandchildren of the paternal grandparents, per capita, and the other one-half to the great-grandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half.
(b) For all purposes of this section, the decedent’s relatives of the half-blood shall be treated as if they were relatives of the whole blood.
(c) Distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime.
(d) The right of an adopted child to take a distributive share and the right of succession to the estate of an adopted child continue as provided in the domestic relations law.
(e) A distributive share passing to a surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled.
Filing an Estate Proceeding
If there is no Will, generally, the “closest distributee” can file for administration or small estate. If the closest distributee does not want to administer the estate, they can sign a renunciation and waiver.
New York Probate and Estate Administration
All estates in New York where there is a will must go through a legal process known as probate. The main purpose of probate is to transfer assets out of the deceased person’s name into the name of the living. An estate’s assets will be frozen while a judge determines if the Will, providing one was left behind, is valid. After the will is probated the administration of the deceased’s estate occurs. This is the process used by the probate court to ensure the deceased person’s creditors are paid through estate settlement and that any remaining assets go to the deceased’s beneficiaries.
Overview of Executor Responsibilities
An executor is the person responsible for administering an estate and making sure the decedent’s final wishes are carried out. The vast responsibilities of an executor may include:
Filing the necessary court papers to start the probate process; Obtaining a copy of the latest will and understand the deceased’s instructions; Locating and taking inventory of all valuables, personal property, and other assets; Handling details like notifying banks and government agencies of your death and filing your final income tax returns; Paying valid claims against the estate; When the estate administration process concludes, the executor will be responsible for collecting the decedent’s property and distributing it.
Why You Should Retain An Estate Administration Attorney
Given the many factors involved in the administration process, naming a third-party executor may be more beneficial for many reasons including:
Even for smaller estates, the administration process can be long and complicated, due to numerous statutes and regulations; The paperwork involved must be filed in the correct order and by specific deadlines; An attorney who specializes in estate administration can either act as an executor or be retained to provide guidance to the person you have chosen to be executor.
It is generally advisable to hire an attorney for larger estates, however, smaller estates can also benefit from an administration attorney who has the experience required to address issues that may arise during the administration process, such as valuing assets and handling the necessary court filings.
4 Reasons to Hire an Estate Administration Attorney
After a will is probated in New York, the administration of the deceased’s estate occurs. Managing the estate’s probate and settlement process is the responsibility of the estate executor. Executor responsibilities include notifying banks and government agencies of the decedent’s death and filing the last income tax returns. When the estate administration process concludes, the executor is also responsible for collecting the estate’s property and distributing it. Since the court does not require an executor to retain the services of an attorney, some executors opt to manage this process on their own. However, here are 4 reasons why it is strongly recommended to always consult an experienced estate administration attorney.
1. It’s Complicated
Navigating the court system is a complicated and sometimes time-consuming process. Estate administration requires specific financial and legal knowledge, the ability to file the correct legal paperwork, and the ability to adhere to strict deadlines. An experienced estate planning attorney can help you avoid costly mistakes, assist with the necessary paperwork and filing deadlines.
2. Someone Is Contesting The Will
The validity of a will can be questioned for multiple reasons. Sometimes there is a concern the deceased was taken advantage of in some manner when writing their will. Other times a family member will challenge a will because they feel cheated out of an inheritance. An experienced attorney may be able to help you avoid this costly and highly emotional complication.
3. A Business or Commercial Real Estate is Involved
When the estate contains a business, commercial real estate, foreign property, or foreign assets, an estate administration attorney should be consulted.
4. Too Much Debt
The executor of the estate is responsible for ensuring the deceased person’s creditors are paid through estate settlement and that any remaining assets go to the deceased’s beneficiaries. This is generally a straightforward process when the estate has enough money to do both. However, when an estate does not have enough money to pay debts and taxes, an attorney should be consulted.