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 Does "Legal Life Tenant" Mean 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: An individual legally entitled to use another’s property for the rest of either of their lives.

    Example: Mary has a legal right to live in her mother’s house for the rest of her life. Mary 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 Does "Judicial Settlement" Mean In Regards To New York Estate Law?

    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: Judicial settlement is the Surrogate’s approval of everything the fiduciary (e.g. executor or administrator) has done on behalf of the estate.

    During the final stage of the administration of an estate, an estate fiduciary may ask the Surrogate’s Court to approve the fiduciary’s actions: what has been collected, what has been paid out, and how the balance is to be distributed. This is referred to as an accounting proceeding. The Surrogate’s Court will issue a decree when the Court determines that the fiduciary’s account of his or her actions is acceptable.

    Example: Jacy filed her final accounting for her mother’s estate with the Court. The Court approved her accounting and issued a decree. Jacy’s accounting of her actions on behalf of her mother’s estate has been judicially settled.

    There is a voluntary accounting, where the fiduciary chooses to start the proceeding. And there is a compulsory accounting, where another party seeks the accounting or the Surrogate’s Court compels it.

    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.

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

    Definition of PROPONENT:
    (noun) / the propounder of a thing (Black’s Law Dictionary)

    Plain English translation: A proponent is a person who proposes something. In the context of New York estate law, a proponent is used to refer to the person who proposes that a last will is valid. In other words, the proponent of a will is the party who offers it for probate.

    Example: “The proponent of the will argued that it properly executed. The objectant claimed it was a forgery.”

    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 “Domicilliary” in New York Estate Law?

    Definition of DOMICILLIARY: (noun) / a person whose domicile is within the state of New York (Surrogate’s Court Procedure Act § 103 [16])

    Plain English translation: A domiciliary is a person whose primary residence is within New York State.

    If you have one home, and it’s in New York, then the answer is easy—your domicile is New York. Determining domicile for those with multiple homes could be a bit more difficult, but generally, your domicile is your primary residence.

    Example: Jill is a New York domiciliary. She lives in Brooklyn with her family and goes to her Miami summer house for about two weeks every year. Even though Miami is like a second home, Jill is considered a domiciliary of New York.

    Your domicile is important in several ways. One of those ways, as it relates to estate law, is whether New York courts have jurisdiction over your estate. If you pass away domiciled in New York, then New York has jurisdiction over your estate. If you die as a domiciliary of Florida, then Florida has jurisdiction. There are other ways New York can have jurisdiction over one’s estate, but domicile is the primary factor.

    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.

  • I'm The Executor Of My Father’s Will And Am Getting Calls About Debts, What Should I Do?

    First, remember that a decedent’s debts are not your personal responsibility—as long as you follow the rules. In other words, if there isn’t enough money in the estate, then you don’t need to pay from your own pocket. However, it’s critical to pay liabilities in the proper order, and your attorney should help you determine who gets paid when there isn’t enough to go around. If you pay the wrong person, then the person entitled to that money could come digging into your pocket.

    Beware: The Executor is Personally Liable for Seven Months . . . and Maybe More

    Debts are often paid toward the end of the administration process—or at least seven months after the executor is appointed. This is a statutory period where the executor can be held personally liable if they pay the beneficiaries, a debt pops up later, and then there isn’t enough money left to satisfy the debt. Once seven months passes, the executor can pay the beneficiaries without liability for any unknown debts. If a previously unknown creditor appears after seven months, that creditor cannot go after the executor personally, but the creditor can look to the beneficiaries to pay the debt.
    If the executor knows of a debt, they can’t simply wait seven months and then pay the beneficiaries. Creditors must be satisfied first.

    Is This Debt Even for Real?

    Keep track of all notices you receive from creditors—credit cards, personal loans, everything—and discuss their validity with your attorney. Creditors could be scammers or simply mistaken. But even legitimate debts are sometimes unenforceable or could be negotiated. Enforcement of a debt could be barred for various reasons including the statute of limitations. Don’t assume all debts are valid.

    Fight for Your Rights

    If you believe a debt is invalid, there are several mechanisms available to determine its validity whether informally or through a court proceeding.

    Pay Legitimate Debts

    An executor is responsible for paying all known debts from estate funds. Where there is no last will, debts are paid “off the top” before dividing the estate among the heirs. If there is a last will, there’s usually a clause directing that debts be paid from the residuary estate, meaning what’s left after all specific gifts (demonstrative bequests) are satisfied such as “I leave my iPhone to Jack” or “I leave $10,000 to Leora.”

    Summing Up

    So remember, as long as you handle payment of debts properly, you’re free from liability. Evaluate all creditor claims with your estate attorney. Consider fighting those debts you believe to be invalid. And pay legitimate and enforceable debts. You’ll keep creditors out of your pocket, earn your executor commission, and fulfill the wishes of the testator.

    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 Happens to a Lapsed Gift in New York Estate Law?

    Not all gifts written into a last will make their way to the named beneficiary. In some circumstances, a gift will fail or lapse. We go into detail on lapsed gifts in our article, What Does it Mean for a Gift to Lapse?

    What happens to a gift that doesn’t make it to the named beneficiary?

    It depends on what the will says. It could also depend on the relationship between the testator and the beneficiary.

    Look to the will for guidance.

    If the will provides instructions as to what should happen if a beneficiary predeceases the testator, then those instructions control. For example, “I, Taraa, leave my engagement ring to Myrna. If Myrna fails to survive me, I then leave my engagement ring to Valentina.” Here, if Myrna predeceases Taraa, then Valentina is entitled to the ring.

    Look to the law for guidance.

    If there are no instructions in the will as to whom should receive a gift if the primary beneficiary predeceases the testator, then the law controls. In most cases, the gift will pass to the residuary beneficiary, meaning the beneficiary who is entitled to the “rest, residue, and remainder” of the estate (aka the person who gets everything left over after specific gifts are made to those entitled to them).
     
    If there is no residuary beneficiary, or if it’s the residuary gift that lapses, then the gift is distributed according to the laws of intestacy (the people entitled to your estate if you leave no will). But don’t forget that the anti-lapse statute provides an exception.

    New York’s Anti-Lapse Statute

    Gifts to the testator’s issue (children, grandchildren, and so on) or a sibling who predecease the testator do not lapse as long as the beneficiary left issue.

    To illustrate, let’s change the example above and have Taraa leave her engagement ring to her sister, Rosa (instead of to her best friend). And let’s assume that Taraa’s last will did not provide an alternate in the event that Rosa predeceases Taraa. If Rosa does predecease Taraa, and Rosa was survived by one son, Vincent, then the anti-lapse statute kicks in. The gift does not lapse and instead passes to Rosa’s issue, Vincent.

    If you’re an executor facing this issue, you could be liable if you distribute property to the wrong beneficiary. Contact an attorney to ensure you properly administer the estate’s assets. It would be a lapse of judgment not to!

    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.