Frequently Asked Probate and Estate Questions

Whether you need to prepare for changes in the life of your loved one or you are sorting out matters after a death, estate issues can be confusing and complex. On this Frequently Asked Questions page, the experienced lawyers at Antonelli & Antonelli share their perspective on many common issues. Don’t see your question here? Don’t hesitate to reach out to our New York City office.

  • Page 1
  • What is a “Disposition” in New York Estate Law?

    DISPOSITION: (noun) / a transfer of property.

    A disposition is a transfer of property by a person during life or by will.

    Plain English translation: A transfer of ownership of property. The transfer can occur during one’s lifetime or through a will or trust where the transfer occurs upon death (also known as a testamentary disposition).

    Examples:

    “She disposed of her property through her last will, which contained three dispositions. The house was given to her son. The bank account was given to her granddaughter. And the rest was given to her husband.”

    “The trust contained a disposition to Anthony of $100,000.00.”

    Do You Need The Help Of An Estate & Trust Litigation Attorney In The New York Metro Area?

    If you need legal help with an estate issue you should speak with an experienced estate litigation attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • What is a Person in New York Estate Law?

    Definition of PERSON: (noun) / a natural person, an association, board, any corporation, court, governmental agency, authority or subdivision, partnership or other firm and the state.

    Plain English translation: For the most part, a person is simply a person. No need for translation, but as you can see from the legal definition, the word could refer to a number types of entities.

    Do You Need The Help Of An Estate & Trust Litigation Attorney In The New York Metro Area?

    If you need legal help with an estate issue you should speak with an experienced estate litigation attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • What is a Personal Representative in New York Estate Law?

    Definition of PERSONAL REPRESENTATIVE: A personal representative is a person who has received letters to administer the estate of a decedent.  (New York Estates, Powers & Trusts Law §1-2.13)

    Plain English translation: A personal representative is typically the person appointed to be in charge of a decedent’s estate. A personal representative is generally considered either an executor (if the decedent died with a will) or an administrator (if the decedent died without a will).

    Upon appointment, a personal representative will receive either letters testamentary (if the decedent died with a will) or letters of administration (if the decedent died without a will) from the Surrogate’s Court. These letters will grant the personal representative the power to gather and administer the property of the decedent.

    Do You Need The Help Of An Estate & Trust Litigation Attorney In The New York Metro Area?

    If you need legal help with an estate issue you should speak with an experienced estate litigation attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • What Happens If I Die Without A Will In New York?

    The purpose of drafting a last will and testament is primarily to control where your assets go after you die. Who should get your money? Who should get your house? Who shouldn’t get anything? A last will must be probated in order to have affect. This means that after you die, someone must petition the Surrogate’s Court to validate the will. But what happens if you don’t have a will?

    New York City Probate Attorney Antonelli & Antonelli

    Your heirs must go to Surrogate’s Court

    If you die with assets in your name, then your survivors must go through a court process—whether you have a will or not. Someone must get authority to handle your assets. If there’s a will, then that person is typically named in the will as the executor. If there’s no will, then one of the heirs typically gets appointed to a position referred to as the “administrator.” This is the person in charge of handling your estate. Will or no will, you must go to court. 
    Occasionally, a person dies with no assets in their name. Either they have nothing, or every asset has been placed in a trust or has some other form of ownership that doesn’t require probate (such as a bank account with a named beneficiary or real estate owned with another as joint tenants with rights of survivorship). Avoiding court is a benefit of meticulous estate planning.

    Authority to act on behalf of your estate is up for grabs

    One of the benefits of a will is that you can name the person who should be in charge of handling your estate—the executor. If you don’t have a will, then the Surrogate will typically appoint one or more of your heirs to a similar position referred to as “administrator.” The appointment is based on the order of priority laid out by New York law. The order of priority goes like this:
     
    • Spouse
    • Children 
    • Grandchildren
    • Parents
    • Siblings
     
    The list goes further to cover less common cases such as where all heirs agree to designate a third party to serve as administrator.
    Choosing a person to be in charge might not be critical if all your heirs are prudent, reliable, and trustworthy people. But in a family with untrustworthy characters and acrimonious relationships, it’s smart to pick the right person and avoid a fight.

    New York State writes your will for you

    If a person passes away as a resident of New York State but leaves no will, then all individually owned property passes according to the New York laws of intestacy. This statute essentially creates a will for those who don’t have one. Here are the rules.
     
    First, we’re only talking about individually owned property, which is a form of ownership that lacks any direction as to who gets the property after you die. Most property is individually owned. But certain property that does direct who comes into ownership upon your death is not considered individually owned and instead passes to the person specifically designated. The following types of property are not individually owned and do not pass according to your will nor according to the laws of intestacy.
     
    • A joint bank account held by two or more people passes to the survivor.
    • Real estate held as “joint tenants with rights of survivorship” passes to the surviving owner.
    • A bank account, insurance policy, investment account, or other asset with a named beneficiary passes to the person named.
    • Property transferred to a trust is controlled by the terms of the trust.
    Pretty much everything else passes according to your will or, if you don't have one, according to New York State law.
    The people entitled to your assets all depends on their relationship to you—either biologically or adopted-in. Friends, caretakers, lovers, and those people who were really good to you during life don’t get anything under the law. So if you want to leave a gift for someone who wouldn’t inherit under the law, it’s critical to draft a last will or give the gift during life. Here is what is referred to as the order of intestacy—the people who inherit from you if you don’t leave a will.

    Spouse and no children

    • If you’re survived only by a spouse, then your spouse inherits everything.

    Spouse and children

    • If you’re survived by a spouse and children, then your spouse gets the first $50,000. Whatever remains is then divided into two shares. Your spouse takes the first share, and your children split the second share equally.
    • Children of predeceased children (grandchildren) step up to share as well. If there is more than one predeceased child leaving children, then all grandchildren inherit equally.
    • Children but no spouse
    • If you aren’t married when you die (or if your spouse is disqualified from inheriting) but you leave children, then your children take equal shares of your estate.
    • Children of predeceased children (grandchildren) step up to share as well. If there is more than one predeceased child leaving children, then all grandchildren inherit equally.

    No spouse nor children

    No spouse nor kids? The next class to inherit is your parents. If only one parent survives, that parent gets 100%

    No spouse, children, or parents

    Parents usually don’t survive their kids, so siblings would inherit in this situation. If there is a surviving sibling and a predeceased sibling, then the kids of the predeceased sibling step up to take the predeceased sibling’s share. In other words, nieces and nephews could inherit in this situation.

    Grandparents, aunts, uncles, and cousins

    In much more rare situations, where a person isn’t survived by more closely related family, the person’s estate would pass to the grandparents if they survive. Grandparents rarely live longer than their grandchildren, but in theory, the estate would be split equally between the grandparents on the maternal side and the grandparents on the paternal side.

    More commonly, the grandparents don’t survive and it’s the aunts, uncles, or cousins who inherit. The estate is still split equally between the maternal and paternal sides, so there might be one maternal heir who gets 50% and multiple paternal heirs who each must share the other 50%.

    No heirs?

    Your heirs could be anyone down to first cousins once removed—the great-grandchildren of your grandparents (your cousins’ kids)—but this is very rare. Even more rare is if you have no heirs, in which case your property escheats (ownership reverts) to New York State. The money is deposited into a fund held by the New York State Comptroller indefinitely.

    Do You Need Legal Help Regarding Probate Issues In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • What is a "will" in New York estate law?

    Definition of WILL:

    (noun) / a last will, including all the codicils thereto

    This is the definition set forth by the New York Estates, Powers, and Trusts Law as well as the Surrogate’s Court Procedure Act. But what is a will, really?

    Plain English translation: A last will is a legal document that provides a person’s last wishes with respect to property and dependents upon that person’s death. It is a set of instructions for disposing of a person’s property, nominating an executor to oversee the transfer of that property, and nominating someone to take custody of minor children.

    Do You Need Legal Help Regarding Probate  Or Estate Litigation In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process, or you find yourself involved in estate litigation you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • What is "property" in New York estate law?

    Definition of PROPERTY:

    (noun) / anything that may be the subject of ownership and is real or personal property, or is a chose in action1

    Plain English translation: Property is anything that can be owned. Real property is land. A house, building, or other structure is improved real property. A condominium apartment owner owns a fraction of the land on which the building sits. Personal property is essentially all other property. A “chose in action” is the right to recover personal property that is wrongfully held by another.

    Do You Need Legal Help Regarding Probate  Or Estate Litigation In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process, or you find yourself involved in estate litigation you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

    __________

    1 EPTL § 1-2.15; SCPA § 103 (44)

  • What is an "infant" in New York estate law?

    Definition of INFANT or MINOR:

    (noun) / a person who has not attained the age of eighteen years1

    Unlike its everyday meaning, "infant" does not mean a very young child or baby. It is the legal term, within the context of New York estate law, to refer to a minor.

    Do You Need Legal Help Regarding Probate  Or Estate Litigation In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process, or you find yourself involved in estate litigation you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

    __________

    1 New York Estates, Powers & Trusts Law §1-2.9-a; Surrogate’s Court Procedure Act § 103 (27)

  • What is an "incompetent" in New York estate law?

    Definition of INCOMPETENT:

    (noun) / a person judicially declared to be incapable of managing his or her own affairs1

    Plain English translation: In order for a person to be considered legally incompetent, a court must make a determination that the person cannot manage himself or his affairs by reason of age, mental illness, or otherwise.

    Do You Need Legal Help Regarding Probate  Or Estate Litigation In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process, or you find yourself involved in estate litigation you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

    __________

    1 New York Estates, Powers & Trusts Law § 1-2.9; SCPA § 103 (26)

  • What is an "estate" in New York estate law?

    Definition of ESTATE: (noun) / ownership interest

    Depending on the context, “estate” may mean: the interest which a person has in property or the aggregate of property which a person owns (New York Estates Powers & Trusts Law § 1-2.6).

    Plain English translation: “Estate” is used many different contexts but, at its simplest, it just means ownership.

    A person can own real estate, meaning an ownership interest in land, usually referred to as title, as in “the landlord holds title; the tenant merely has a right of possession.”

    “Trust estate” refers to property held by a trust where the trustee holds legal title (right to manage) and the beneficiary holds beneficial title (right to benefit from).

    “Probate estate” refers to property passing through one’s last will.

    When a living person refers to his or her “estate” it is usually a reference to the person’s aggregate ownership, as in “I’ve built a large estate of land, stock, and commodities.”

    Do You Need Legal Help Regarding Probate  Or Estate Litigation In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process, or you find yourself involved in estate litigation you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.

  • What is a "creator" in New York estate law?

    Definition of CREATOR: (noun) / a person who makes a disposition of property

    New York Estates Powers & Trusts Law § 1-2.2 provides this general definition. However, the usage varies depending on context. A “disposition of property” means a direction of where the property will pass or to whom it will pass as in “the creator disposed of his house by leaving it to his daughter through his trust.”

    The term “creator” is typically used in the context of a trust, whereas the term “testator” is typically used in the context of a will. “In her will, the testator left all her jewelry to her son.” The creator “creates” the document that disposes of the property.

    Synonyms include trustor and grantor.

    Do You Need Legal Help Regarding Probate  Or Estate Litigation In The New York Metro Area?

    If a loved one died without a will and you need legal assistance regarding the probate process, or you find yourself involved in estate litigation you should be speak with an experienced probate attorney as soon as possible. Contact us online or call our New York City office directly at 212.227.2424 to schedule your free consultation. We proudly serve clients throughout New York and northern New Jersey including Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County and Westchester County.