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.

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  • What is a “Legal Life Tenant” in New York Estate Law?

    Definition of LEGAL LIFE TENANT:
    (noun) / any person entitled for his life or for the life of another to the possession and use of real or personal property (SCPA § 103 [30])

    Plain English translation: A legal life tenant is a person legally entitled to use someone else’s property for their entire life. The time that the right exists can be based on the tenant’s life or the life of another person.

    Example: Richard transferred his house to Teresa and gave Rory the right to live in the home for the rest of Rory’s life. Therefore, Teresa owns the property, but Rory is a legal life tenant.

    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 in Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Westchester County and throughout New York as well as northern New Jersey.

  • What is “Judicial Settlement” in New York State Surrogate’s Court?

    Definition of JUDICIAL SETTLEMENT:
    (noun) / a proceeding whereby the account of a fiduciary is settled and adjudicated by decree of the court (SCPA § 103 [29])

    Plain English translation: A fiduciary, such as an executor or administrator, is accountable to the beneficiaries, or those entitled to benefit from the assets. One way of having the fiduciary’s account approved is through a court proceeding where the account is filed with the Surrogate’s Court for judicial approval or judicial settlement. To indicate that the account is acceptable, and to release the fiduciary from liability, the court will issue a decree judicially settling the account.

    Example: Jacy, as executor of her mother’s estate, filed her final accounting with the court. The court issued a decree approving her accounting. The accounting proceeding for Jacy’s mother’s estate has been judicially settled. 

    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 in Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Westchester County and throughout New York as well as northern New Jersey.

  • What is a "Grantor" in New York Trust Law?

    Definition of GRANTOR:
    (noun) / the creator of a lifetime trust (SCPA § 103 [23])

    Plain English Definition: In the context of trust law, a grantor is a person who creates a trust and transfers money or other property into the trust. In real estate law, a grantor is one who transfers or sells real property. A grantor is the giver of property, whereas the grantee is the receiver of property.

    Example: Mark visited his attorney and instructed her to create a trust to protect his assets. Once the trust is created, Mark will sign as the grantor of his trust.

    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 in Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Westchester County and throughout New York as well as northern New Jersey.

  • What is a “Funeral Expense” in New York Estate Law?

    Definition of FUNERAL EXPENSE:
    (noun) / includes reasonable expense of a funeral, suitable church or other services as an integral part thereof, expense of internment or other disposition of the body, a burial lot and suitable monumental work thereon and a reasonable expenditure for the perpetual care of burial lot of the decedent. For the purpose of subdivision one of section eighteen hundred eleven of this act, funeral expense shall also include burial expenses awarded pursuant to article twenty-two of the executive law. (SCPA § 103 [22])

    Plain English translation: A funeral expense is just what it sounds like—costs associated with the decedent’s funeral. It also includes disposition of the body, such as cremation, internment, burial, and perpetual care.

    Example: Juan’s wishes were to be cremated and for his ashes to be spread into the sea. His sister, Diana, spent $11,000 for the cremation, boat rental, and a memorial service. These costs were reimbursed to Diana from Juan’s estate because they were considered reasonable funeral expenses.

    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 in Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Westchester County and throughout New York as well as northern New Jersey.

  • What Does It Mean to be “Eligible to Receive Letters” in New York State Surrogate’s Court?

    Definition of ELIGIBLE TO RECEIVE LETTERS:
    (adjective) / not disqualified on any of the grounds described in SCPA § 707 (SCPA § 103 [18])
     
    Plain English translation: Anyone who is not disqualified by statute, is considered eligible to serve as a fiduciary (e.g. administrator, executor, guardian, trustee). The statute that tells us who is disqualified is SCPA § 707.
     
    SCPA § 707
     
    (1) Persons ineligible:
    (a) Infant
    (b) An incompetent
    (c) A non-domiciliary alien except one who is a foreign guardian as provided in subdivision four of section one thousand seven hundred sixteen of this chapter, or one who shall serve with one or more co-fiduciaries, at least one of whom is a resident in this state. Any appointment of a non-domiciliary alien fiduciary or a New York resident fiduciary hereunder shall be made by the court in its discretion.
    (d) A felon
    (e) One who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office
     
    (2) Persons ineligible in court’s discretion: the court may declare ineligible to act as a fiduciary a person unable to read and write the English language. 
     
    Example: Laura is Rob’s widow. Laura’s criminal record contains a felony. Therefore, Laura is ineligible to serve as executor of Rob’s estate.

    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 in Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Westchester County and throughout New York as well as northern New Jersey.

  • What is an “Ancillary Guardian” in New York State Surrogate’s Court?

    Definition of ANCILLARY GUARDIAN:
    (adjective) / any person to whom ancillary letters of guardianship, whether of the person, property, or both, of an infant have been issued (SCPA § 103 [7])

    Plain English translation:  A guardian appointed by a New York court for an individual who resides outside New York.

    While the statutory definition refers only to infants (under 18 years of age), it also includes those who are guardians for developmentally disabled persons under Surrogate’s Court Procedure Act § 17-A.

    Example: Anand is 12 years old and lives in Texas with his mother, who was appointed as his legal guardian by a Texas court. Anand’s father lived in New York until his death. In order for Anand to receive his inheritance, New York requires that a guardian of Anand’s property be appointed in New York. Anand’s mother petitioned the New York State Surrogate’s Court and was appointed as ancillary guardian for Anand’s property. Therefore, once Anand’s father’s estate is wrapped up, Anand’s share will be distributed to his mother as his ancillary guardian. 

    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 in Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Westchester County and throughout New York as well as northern New Jersey.

  • What Does "Intestate" Mean In Regards To New York Estate Law?

    Definition of INTESTATE
    (adjective): a person who dies without leaving a valid will; where it is used with respect to particular property, a person who dies without effectively disposing of that property by will; when used as an adjective, to property not effectively disposed of by will (SCPA § 103 [28])

    Plain English Translation: a person who dies without leaving a valid last will; or property that is not controlled by a last will.

    Example: Bob recently passed away. His family discovered that he never made a will. Bob died intestate. 

    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 in Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Westchester County and throughout New York as well as northern New Jersey.

  • What Is An "Individual Trustee" In Regards To New York Estate Law?

    Definition of INDIVIDUAL TRUSTEE
    (noun): any trustee who is not a corporate trustee. (SCPA 103 [26-a])

    Plain English translation: a person, as opposed to a corporation, who serves as trustee or representative of a trust.

    Example: George is an individual trustee for the “Paul McCartney Family Trust”. He serves with corporate trustee, Chase Bank. 

    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 in Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Westchester County and throughout New York as well as northern New Jersey.

  • What Is An "Incapacitated Person" In Regards To New York Estate Law?

    Definition of INCAPACITATED PERSON
    (noun): any person who for any cause is incapable adequately to protect his or her rights, including a person for whom a guardian has been appointed pursuant to Article 81 of the Mental Hygiene Law (SCPA § 103 [25])
     
    Plain English translation: a person who lacks the ability to protect himself
     
    Reasons why an individual may be found incapable of adequately looking after his rights include:
     
    1. Advanced age;
    2. Illness;
    3. Infirmity;
    4. Mental weakness;
    5. Alcohol abuse;
    6. Addiction to drugs; or
    7. Any other cause.
     
    Example: Charles suffers from advanced Alzheimer’s disease and cannot protect his rights. Since he is incapacitated, he needs someone else to represent his legal interests.

    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 in Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Westchester County and throughout New York as well as northern New Jersey.

  • What Is A "Guardian" In Regards To New York Estate Law?

    Definition of a GUARDIAN:
    (noun): a person to whom letters of guardianship have been issued by a New York court pursuant to the SCPA, the Family Court Act or Mental Hygiene Law Article 81; this includes a guardian of an infant’s person and/or property appointed under SCPA Article 17 and a guardian for mentally retarded or developmentally disabled person for whom a guardian has been appointed pursuant to SCPA Article 17-A (SCPA § 103 [24])

    Plain English translation: a person appointed by a court to be responsible for another individual and/or the property of that individual

    Examples: Bob is developmentally disabled. So even though he’s over the age of 18, he needs someone to make decisions for him. Therefore, the court appointed his mother to serve as his guardian. Carrie is 12 years old, so she is too young to protect her legal interests in court. Therefore, her father was appointed as guardian of her property so he could protect her interests.

    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 in Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Westchester County and throughout New York as well as northern New Jersey.