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 "codicil" in New York estate law?

    Antonelli & Antonelli Probate & Estate Litigation Attorneys New York New York

    Definition of CODICIL: (noun) / a supplement to a will

    New York Estates Powers & Trusts Law defines a codicil as a supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will (EPTL § 1-2.1).

    Plain English translation: a codicil is similar to an addendum or rider to a contract; it typically changes only some of the terms included in the will.

    Codicils have become rare since the advent of modern computers and word processing templates. In the pre-digital age, a codicil was a shortcut used to avoid having to retype an entire will. Today, attorneys often save the final draft of their clients' wills in a word processing program and can easily make changes. Even without the final draft, a new will can be populated relatively quickly.

    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 Holographic Will?

    Definition of HOLOGRAPHIC WILL:

    (noun) / a will written entirely in the handwriting of the testator and not executed and attested in accordance with the formalities prescribed by New York Estates Powers & Trusts Law § 3-2.1

    In order for a holographic will to be admitted to probate, it must be proven that the will was written entirely in the testator’s handwriting and that the testator, at the time the will was executed, was a member of the armed forces while in actual military or naval service during a war or other armed conflict; a person who serves with or accompanies an armed force engaged in actual military service during such war or armed conflict, or a mariner at sea.

    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.

  • FAQ: Will Contests - Do I have grounds for contesting a will? (Part 1 of 6)

  • FAQ: Will Contests - Do I have grounds for contesting a will? (Part 2 of 6)

    Grounds for Contesting a Will

    Undue Execution <<<<
    Revocation
    Incapacitation
    Fraud
    Undue Influence

    In Part 1 of this series on will contests, we discussed the following questions:

    Who can contest a will?

    and …

    What are legitimate grounds for contesting a will?

    In this post, we will get into the details of the first ground for contesting a will – undue execution.  When someone objects to a will on the basis of undue execution, what is being alleged is that the will was not duly executed.  Remember, the information below focuses on will contests in New York and more specifically on will contests in New York City.

    Due Execution: Was the will properly executed?

    Wills must be executed in strict compliance with the provisions of New York Estates, Powers, & Trusts Law (EPTL) §3-2.1.  The elements are due execution are:

    The signature of the testator must appear at the end of the will, just before the witness attestation clause;

    The testator must sign the will in the presence of each of the witnesses, or his signature shall be acknowledged to each witness as his signature;

    The testator must declare to each of the witnesses that the document they are witnessing is the testator’s will; and

    There must be two witnesses to the will. The testator must ask each witness to sign his will. Additionally, both witnesses must sign the will within 30 days of each other.

    If the will was not executed in compliance with the above provisions, it is not a valid will and can be challenged through a will contest.

    Examples of Improper Execution of a Last Will & Testament

    1. Thomas executes his will at his estate attorney’s office in Manhattan by signing in the middle of page 5.  Thomas then adds language at the bottom of page 5, beneath his signature, leaving his Brooklyn apartment to his niece, Beth. 

    What is the result?  Under New York law, although the will may be valid, the language after the Testator’s (Thomas’s) signature is considered invalid and ineffective.  The Brooklyn apartment would be distributed as though the additional language after Thomas’s signature did not exist.

    2. Thomas wants to draft a will but is not physically able to travel from his Brooklyn home to his estate attorney’s office in Manhattan.  In order to accommodate Thomas, the attorney travels to Thomas’s home in Brooklyn where Thomas executes the will.  The attorney then takes the will back to his Manhattan office and has his two associates sign the will as witnesses. 

    Problems?  Yes – two of them.  First, the Testator did not sign the will in the presence of the either witness nor did he acknowledge that the signature was his.  Second, the Testator did not declare to the witnesses that the document they were witnessing was Thomas’s will.  Under New York law, this will is invalid.

    It is extremely important to properly execute a will; otherwise, it may be subject to a will contest in Surrogate’s Court on the ground that it was not duly executed.

    Do You Need To Speak With A Lawyer About Estate Planning?

    If you need to speak with an experienced estate planning lawyer please contact us online or call our 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.

  • FAQ: Will Contests - Do I have grounds for contesting a will? (Part 3 of 6)

    Undue Execution
    Revocation <<<<<
    Incapacitation
    Fraud
    Undue Influence

    In the previous posts in this series on will contests in New York, we discussed whom may contest a last will and testament and on what grounds a will may be contested.  Here, in Part 3, we will go into further detail on the second ground on which a last will and testament may be contested  – revocation.  Revocation is the claim is that the will is invalid on the basis that the Testator revoked or canceled it.  Remember, the information below focuses on will contests in New York and more specifically on will contests in New York City.

    Revocation of a Last Will & Testament

    Under New York State Law, EPTL §3-4.1 provides that a will is considered revoked under the following situations:

    1. The Testator executed a subsequent will;
    2. The Testator clearly indicates, through a written document, an intention to revoke the will, which is executed with the same formalities of a will; or
    3. The Testator destroyed the original will by ripping, burning, tearing, or another act of destruction.

    If the Testator revoked his last will and testament in such a manner, any prior wills are not automatically revived.  For example, if Thomas executed his last will and testament in 2008 and then executed a new last will and testament in 2010, then the 2008 will is considered revoked.  If Thomas then revokes the 2010 will, the 2008 will remain revoked subject to certain exceptions.  Therefore, assuming the 2008 and 2010 wills are the only wills ever executed by Thomas, he is then considered to have died with no will and his estate would be distributed according to the laws of intestacy.

    Do You Need To Speak With A Lawyer About Estate Planning?

    If you need to speak with an experienced estate planning lawyer please contact us online or call our 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.

  • How Divorce Can Affect Your Estate Plan

    Background: Designating Beneficiaries & Appointing Fiduciaries

    Executing a last will & testament, power of attorney, and health care proxy are important estate planning tools and this basic plan can be expanded to include designating beneficiaries on life insurance policies, bank accounts, and other assets. Simply having a named beneficiary on a life insurance policy, for instance, makes that asset a “ non-probate” asset, meaning the asset transfers automatically to the beneficiary outside of any estate proceeding. On the other hand, if that same life insurance policy had no beneficiary, then the proceeds would flow into the estate and be subject to an estate proceeding in Surrogate’s Court. Another example is a savings account. With a named beneficiary, the savings account transfers automatically to the named beneficiary upon the death of the account owner. The beneficiary would only need to comply with the rules of the bank or institution holding the account (e.g. provide a copy of the death certificate and identification of the beneficiary). On the other hand, if that same savings account had no named beneficiary, then the funds would become part of the estate and be subject to the administration of the estate, which could take a significant amount of time (months or perhaps years in the case of a contest). An equally important task in the estate planning process is the appointment of fiduciaries. A fiduciary is a trusted person who is appointed to a position where she is legally bound to act on behalf of another in good faith. Common fiduciary roles include the executor of a last will & testament, trustee of a trust, health care agent, guardian, and agent under a power of attorney (also known as an attorney in fact). Your fiduciaries play crucial roles because they have broad powers over your financial and health care decisions.

    Effect of Divorce on Designated Beneficiaries & Nominated Fiduciaries

    The effects a divorce can have on your estate plan can be easily overlooked when dealing with the many issues surrounding divorce. Under New York law, a divorce or a judicial separation revokes revocable dispositions of property made to your then-spouse. This may include, but is not limited to, dispositions in a last will & testament and designations as beneficiary on a bank account, life insurance policy, pension, or revocable trust. It is important to note that not all states have adopted similar laws. In New York, the key characteristic is revocability of the instrument. This means that if the decedent could have revoked the instrument during her life, then divorce will likely nullify the provisions concerning the ex-spouse. A divorce or judicial separation also revokes appointments of your ex-spouse in estate planning documents such as appointments of executor, trustee, guardian, health care agent, or attorney-in-fact. The effect of revocation will likely have a large impact on the estate since the ex-spouse will be considered to have predeceased you. For example, if your ex-spouse was named as beneficiary in your last will and testament and you failed to change the will before your death, your ex-spouse would be treated as having predeceased you and receive nothing; therefore, your assets that were directed to go to your spouse would instead go to the alternate beneficiaries named in your will – this is one reason why giving careful consideration to your alternate beneficiaries is very important. Similarly, if you name your spouse as your executor under your will but that provision is revoked by divorce or judicial separation, then your now ex-spouse will be unable to serve; your alternate agent will have to step up to fill the role.  Revocation of provisions regarding ex-spouses are appropriate in many cases. It is natural to think that if you divorce your spouse, you no longer want the spouse to be entitled to your assets upon death. However, this is not always the case. In some situations, spouses separate on amicable terms and intentionally leave each other as beneficiaries for the purpose of care and support of the surviving ex-spouse. In other cases, this is done for the benefit of minor children. However, this intent might not be realized under the structure of New York estate law. In such cases, it is extremely important to consult a New York estate planning attorney to make sure your intentions are realized.

    Exceptions

    There are exceptions to this general rule of revocation. Here are two examples:

    • A divorce decree or separation agreement that requires you to maintain certain benefits for your ex-spouse will control.
    • Similarly, if you designate your ex-spouse as a beneficiary after your divorce and demonstrate a clear intent that the ex-spouse remain as beneficiary, then the ex-spouse may still be entitled to inherit.

    Each situation is unique and there may be other exceptions that will apply to you. Therefore, it is important to consult with an estate planning attorney in order to evaluate and possibly re-evaluate the potential impacts of a divorce on your estate planning strategy. 

    Do You Need To Speak With A Lawyer About Estate Planning?

    If you need to speak with an experienced estate planning lawyer please contact us online or call our 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.

  • How Long Does Probate Take?

    Probate is rumored to be a lengthy, difficult, and awful process, which is why many people attempt to avoid it when at all possible. However, while the process can be confusing and frustrating, it isn’t always as bad as it’s made out to be. A full understanding of the necessary steps involved in probating a last will and testament in New York is key to estimating how long the process will take. Be aware that the unique circumstances of each estate can greatly change the timeline. And there is no way to know exactly how long probate will take until it is complete. Time estimates vary widely because every estate is different.

    The probate process breaks down into three general stages:

    1) appointing an executor;

    2) marshaling assets and determining debts; and

    3) accounting.

    Below we review these stages, their estimated timelines, and some potential causes of delay. Understand that these are just estimates based on the assumption that no one is contesting any part of the process. If a contest occurs, then the parties litigate the dispute and all bets are off when it comes to time estimates. Remember—bringing one additional factor into the mix can cause significant delay.

    *The information in this article applies to probate of a last will and testament but it generally applies to the administration of an intestate estate, that is, the estate of a person who did not leave a last will and testament.

    Appointing an Executor (rough estimate: 30-90 days)

    The first step in the probate process is appointing an executor. The executor will oversee the administration of the estate. The executor is like the CEO of a company; she’s in charge but has to act in the best interest of the company (or the estate).

    The executor named in the will of the deceased has to bring forward the will for probate and the will must be authenticated or validated by the court. If we start the timeline on the day the executor first hires an attorney, then the timeline will look something like this:

    • Two weeks for the executor to gather necessary documents and information;
    • Two weeks for the attorney to draft the probate petition, have the executor sign it, and file the petition with the Surrogate’s Court.

    We’re looking at about a month before the petition is even filed. Some executors have everything up front and are ready to go right away. This speeds up the process. If death certificates or other documents need to be ordered, this can slow the process. All heirs at law are asked to consent to probate in writing. If the heirs don’t do this promptly, or at all, this can extend the timeline by weeks.

    Potential Delay 

    If the executor does not know the location of an heir, this could cause delay because the executor must use “due diligence” in attempting to locate the heirs. The same issue arises where there are unknown heirs.

    Potential Delay 

    If an heir contests the legitimacy of the will, then the parties litigate the dispute until it is resolved either by settlement or judicial decree. Will contests can take years to resolve.

    Assuming there is no will contest, the petition is submitted to the Court for review. If everything is acceptable to the Surrogate, then a decree will be issued appointing the executor. The time it takes for the Court to process the petition varies from county to county. Some of the less populated counties will issue a decree within two weeks of the filing date. The more populated counties, especially those within New York City, tend to be inundated with work and can take 6-8 weeks or longer.

    If we add up our time estimates of four weeks for preparing and filing the petition plus eight weeks for the Court to process it, our timeline is up to about three months for getting the executor appointed.

    In some circumstances, the Surrogate will consider expediting this process. If there is an emergency situation, the petitioner can ask the Surrogate to consider the application right away. However, there must be a truly urgent situation. The question to ask is, “if the executor is not appointed quickly, will the estate suffer a significant loss?”

    Marshaling Assets and Determining Debts (length varies widely; at least 7 months)

    Once the executor is appointed she must marshal, or collect, the decedent’s assets and determine what debts need to be paid. This length of this stage varies greatly depending on the type of assets and the difficulty in liquidating them. Debts are somewhat easier to determine but a delay can occur if the executor disputes a debt.

    Identifying and locating assets is accomplished through the executor’s knowledge and investigation. Investigation can include speaking with the decedent’s accountant, financial planner, attorney, and friends and family. There are also various databases that can be searched. Assets such as bank accounts and personal property can often be collected immediately. Occasionally, investment accounts take longer to liquidate.

    Selling real estate is often a lengthy process. A properly priced listing can result in an accepted offer in as little as a few weeks, but the seller and buyer then need to enter into a contract and complete the sale. The total time, from listing to closing, can easily take 90 days or more.

    Potential Delay 

    The time it takes to sell real estate is very difficult to estimate because no two transactions are alike. Various pitfalls are: a buyer failing to obtain a mortgage commitment, title defects, the need to make repairs, the need to evict an occupant, or a beneficiary objecting to the sale. Any of these issues can delay the process by months.

    Potential Delay 

    If a dispute arises over the ownership of property (does the decedent own it, or does someone else?), the parties would litigate the dispute until it is resolved by settlement or judicial decree. Litigation can take years to resolve.

    Debts can be paid once the executor determines that the estate is solvent (enough money to pay all expenses and debts). However, an executor might not be aware of a debt until the creditor files a claim. And executors are personally liable to a creditor if: a) the creditor files a claim within seven months of the executor’s appointment; b) there are insufficient funds to pay the creditor; and c) the executor distributed estate funds that would have been available to be paid to the creditor. Therefore, it is wise to make no distributions or pay any debts until at least seven months passes, subject to exceptions.

    Seven months is the shortest amount of time that this stage typically takes. Assuming there is no litigation in this stage, other delays can often be resolved in a matter of months. This puts the length of this stage, for many estates, at about a year.

    Accounting

    The accounting stage consists of the executor (or administrator) advising the interested parties, usually the beneficiaries, as to what was collected, what was paid out, and what is left to distribute. The purpose of the account is to release the executor from liability. This is accomplished in two ways: informal accounting or judicial accounting.

    Most estates are settled informally. The executor provides each interested party with a written account of her actions and proposed distribution. If acceptable to the party, then that person signs a Receipt & Release, indicating that the person received the proper distribution and releases the executor from liability. This process only takes as long as is required to put the account together and obtain the Receipts & Releases, often 30-60 days for simple estates.

    In certain circumstances, the executor will settle her account judicially. This consists of asking the Surrogate to approve the account (by filing a petition) and, if acceptable, the account is approved and the executor is released from liability (by decree of the Court). Circumstances that necessitate a judicial accounting include situations where an interested party refuses to sign a Receipt & Release and where an interested party is under a legal disability (e.g. an infant). The process starts with the drafting and filing of a formal account, petition, citation, and supporting documents. After the Court reviews the filings, which can take several weeks to several months, the Court will issue a citation to be served upon the interested parties. This sets a court date (about 30 days after issuance) to give the interested parties an opportunity to object to the executor’s account. If no one voices objections, then the account will go through a final review by the Surrogate’s law department and, if everything is in proper order, a decree will be granted approving the account and releasing the executor from liability. This can take several more weeks or months depending on how quickly things move in the particular county in which your proceeding takes place. Uncontested judicial account proceedings in the counties of New York City can easily take six months to one year or longer.

    Summary

    It’s worth it to state again: any estimate of how long it takes to probate an estate is just a guess and subject to delays. When a dispute arises, all bets are off. As you can see from this article, the estimates vary widely. Our estimates from above:

    • Appointing an estate representative: 30-90 days
    • Marshaling assets and determining debts: 7 months – 1 year or more
    • Accounting: 30 days – 1 year

    The range we get is 9 months to 2+ years. The variation in length is appropriate because every estate involves different issues with different levels of complexity. And sometimes, it is not even the complex issues, but rather the simple issues, that take a long time to resolve. Many estates can be administered in the 12-15 month range—occasionally shorter and occasionally longer. Litigated cases can take years to administer. When faced with an estate that appears to be relatively straight forward, I encourage clients to expect the process to take at least a year and to be prepared for delays that could bring the timeline closer to two years.

    What Can Be Done to Expedite the Probate Process?

    Most aspects of the probate process cannot be expedited. For example: you can’t control the time the courts take to process petitions and you can’t force people to respond to requests in a timely matter. However, there are a few things within your control:

    • Act quickly. It isn’t necessarily critical to start the process right away, especially considering the time needed to grieve after the loss of a loved one. However, if your goal is to minimize time, then the sooner you get started, the sooner you will finish.
    • Don’t go it alone. Self-represented executors are bound to make mistakes. Some can cost the estate money, but most cost time. A small error in your petition, could move your application to the bottom of the clerk’s pile. This is especially true in the counties of New York City where the Courts are inundated with cases, often have long backlogs, and the clerks have a limited ability to assist the self-represented. Will hiring an attorney be costly? Yes. But not having an experienced probate attorney can be more costly. This mindset applies to most aspects such as hiring accountants, real estate brokers, and other professionals who can assist in the estate administration process.
    • Stay organized. The administration process can include an overwhelming amount of information and documentation. Keep your records organized; retain receipts and emails; keep pristine account ledgers. This will save you time, and headache, in the long run.

    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.

  • How to Probate a Will

    Probate is a complex process that involves appointing an estate representative (e.g. executor), gathering the property of the decedent, and distributing the property to the proper parties. Serving as executor of an estate is a big responsibility and requires a significant amount of time and effort. Probating a will can be challenging, however, when taken step by step, the process becomes more manageable.

    There are three major phases of probate. The first phase consists of applying to the Surrogate’s Court to admit the will to probate and to appoint the executor. Phase two consists of the executor collecting the decedent’s property and determining the debts. The final phase consists of the executor accounting for all estate activity: what was collected, what was paid out, and what is left to distribute to the beneficiaries.

    Step One: Getting Started – Petitioning for Probate

    Step One begins with the filing of a petition and ends with the Surrogate issuing a decree. The decree admits the will to probate (validates the will) and appoints the person nominated as executor to represent the estate.

    Petition & Supporting Documents

    • A Petition for Probate must be filed in the county that the deceased resided at the date of death. The petition must be filed with the original last will and testament, death certificate, and court filing fee. Additional supporting documents and affidavits may be required depending on the circumstances.

    Notice of Probate Proceeding

    • All necessary parties must be given notice of the probate proceeding. The Surrogate’s Court must obtain jurisdiction over certain interested persons (through notice) in order for any decree to be binding upon that person. The individuals whom must be served with notice depends on the circumstances but nearly always includes the heirs at law—the individuals who would inherit even if there were no will. The required form of notice varies depending on the person’s relationship to the decedent. The means by which the notice is served on the person depends on the person’s residence.

    Proof of Validity of Last Will & Testament

    • The main point of the probate proceeding is to prove the validity of the will—that it is, in fact, the decedent’s will, that it was properly executed, and that the decedent had the capacity to execute a will. These elements must be proven by the person putting forth the will for probate—the petitioner. Proving the will can be accomplished by examining the witnesses to the will under oath. However, this examination is often dispensed with where the testator (person creating the will) and witnesses executed a Self-Proving Affidavit. This document contains a sworn statement attesting to the will’s validity. If no self-proving affidavit exists, the petitioner may seek to obtain a similar affidavit from the witnesses, after the date of death, which may also allow the examination to be dispensed with.

    Executor’s Bond

    • The executor may be requested to post a bond to ensure that the job is done properly. Most wills contain a clause allowing the executor to serve without a bond but occasionally one will be required. The bond serves as insurance to cover any losses caused by the executor.

    Decree Granting Probate & Letters Testamentary

    • Once the Surrogate is satisfied that the will is valid, that proper notice has been given to the necessary parties, and that the nominated executor qualifies for the position, then the Court will issue a decree granting probate and authorizing the issuance of Letters Testamentary to the executor. Letters Testamentary is a document indicating that the executor may act on behalf of the estate.

    Step Two: Administering the Estate

    Once the will is admitted to probate, the executor must begin administering the estate. This basically means collecting assets and determining debts. The executor may find this job most challenging of all, since it is the responsibility of the executor to ensure that assets are protected, creditors are paid, and the net estate is distributed to the beneficiaries in a manner that is consistent with the decedent’s will. A few responsibilities of the executor are:

    1. Determining Assets

    • In some circumstances, the executor has intimate knowledge of the decedent’s assets. In other situations, little is known about the existence of assets. There are several methods available for ascertaining estate assets.

    2. Inventory of Assets

    • Executors must make a list of the decedent’s assets. An inventory of assets must be filed with the court within the later of six months of the date of appointment, or the date on which an estate tax return is due. Real estate, and occasionally other valuable items, should be appraised.

    3. Employer Identification Number (EIN)

    • The executor should obtain an employer identification number from the IRS. This sounds like a misnomer because there is no employer involved in an estate but the EIN is simply to identify the estate like a social security number.

    4. Estate Account

    • The executor should open an estate account so estate funds can be segregated from the executor’s personal funds.

    5. Estate Related Taxes

    • The executor is responsible for filing various federal and state tax returns which can include: the decedent’s final income tax return, estate tax return, fiduciary income tax return.

    6. Determine Debts

    • Before you transfer the decedent’s assets to the beneficiaries, you must first satisfy creditors of the estate. Examples of creditors include mortgage lenders and credit card companies.
    • Debts usually should not be paid until it is determined that the estate has enough funds to cover administration costs (court fees, attorney fees, administrator commissions, funeral etc.) and funeral expenses. Administration expenses and funeral expenses have priority over all debts.

    7. Record Keeping

    • You must keep diligent records of every transaction conducted on behalf of the estate, including all expenditures. Not only are you required to do this but sometimes questions or objections arise from heirs, creditors, or the Court. Keeping proper records ensures your ability to account for your actions.

    These are just a few of the many responsibilities of an executor. Depending on the characteristics of each estate, the executor can have many other duties. Therefore, it is important to figure out exactly what needs to be accomplished and the best method for getting there.

    Step Three: Accounting and Wrapping Up the Estate

    The final phase of probate is accounting. Often, executors are relieved to reach this stage of the process because it means they’re in the home stretch and the remaining assets are ready to go to the beneficiaries. Once all assets are collected, all debts are determined, and any disputes have been resolved, the executor is ready to account.

    An accounting is simply the executor’s way of memorializing what has been collected, what has been paid, and how the executor proposes the remainder be distributed. The executor needs the beneficiaries to approve the account and she needs the beneficiaries and creditors to indicate they’ve received what they are entitled to.

    Most estates are settled informally without a court proceeding. The executor’s attorney would prepare the account and have each of the beneficiaries approve it. The beneficiaries are asked to sign a Receipt & Release, indicating that they approve the account, have received what they are entitled to, and release the executor from liability.

    For various reasons (e.g. an interested party cannot be located or refuses to approve the executor’s account), some estate are settled through a judicial accounting proceeding. This process starts with the executor filing a petition asking the Court to approve her account. All beneficiaries, creditors, and other interested parties must be provided with notice of the proceeding so they have the opportunity to object. If a dispute arises, the Surrogate can hold a hearing to resolve it. Ultimately, the Surrogate issues an accounting decree, giving the account its seal of approval and releases the executor from liability.

    When to Contact a New York Probate Lawyer

    Some executors hire a probate lawyer from the outset. Others wait until problems arise. If you are going to serve as an executor, it is important to have knowledgeable legal support at every stage. Mistakes can be costly and executors are personally responsible for damage caused by their negligence. The decision is ultimately up to the executor but it is prudent to have adequate guidance.

    An experienced probate attorney can help you navigate the challenges presented by probate and can give you the information and resources needed to administer an estate as efficiently and effectively.

    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 should I know about Living Trusts in New York?

    A living trust can be an excellent estate planning tool for many individuals with significant assets that they want handled a certain way. The process of creating a living trust can seem overwhelming at first, however, it can be significantly less complex when you understand the basics of what living trusts are and how they can be utilized to help you create a comprehensive estate plan that covers all your bases.

    What Is a Living Trust?

    Understanding what a living trust is boils down to knowing what a trust itself is. A trust is simply a fiduciary agreement made between three people, a trustmaker, the trustee, and a beneficiary. The trustmaker, also called the grantor or settlor, agrees to transfer property to the trustee, who will then manage the trustmaker’s assets on behalf of the beneficiary. The trustee does not own the assets contained in the trust – instead, the assets belong to the trust itself and the trustee simply manages those assets. When and how those assets transfer to the beneficiary vary depending on how the trust is created and under what terms it is created.

    What makes a trust a living trust, or an inter vivos trust, is that it is created when the grantor is still living, as opposed to the trust being created at the time of the trustmaker’s death.

    Types of Living Trusts

    There are many different types of living trusts and each can be used for a variety of purposes. Determining what kind of living trust you need and how it can potentially benefit you depends largely on your unique situation and what your financial goals are for yourself and your family.

    Revocable Living Trusts

    A revocable living trust is likely the most widely used type of living trust. This type of trust can be modified, changed, added to, or even canceled at any point during the grantor’s life. A revocable living trust can help the grantor to avoid probate, which can be costly and time consuming for family members following the grantor’s death. However, if assets are owned by a trust at the time of the grantor’s death, those assets avoid the probate process. Many people set up revocable living trusts because they enjoy the idea of being able to protect their assets from probate upon their death, but still want to maintain control over those assets during life.

    Irrevocable Living Trusts

    An irrevocable living trust is also a well-known type of living trust and is often used in a variety of situations. This type of trust cannot be modified, changed, added to, or canceled during the life of the grantor. Essentially, this type of trust separates the use of assets from their legal ownership, meaning that the owner of the assets technically no longer owns the assets and the assets are owned by the trust. However, if also named as the beneficiary as in a self-settled trust, the former owner (or grantor) may be able to continue to use these assets.

    Asset Protection Living Trusts

    An asset protection trust is a type of irrevocable trust that is designed to protect an individual’s assets from creditors. A grantor can set aside his or her assets in an asset protection trust, transferring ownership of the assets from themselves to the trust. Once the trust owns those assets, creditors no longer have the ability to collect against them. This rule is subject to exceptions such as where the individual transfers the assets in an attempt to evade creditors. Because of the control that is maintained over a revocable living trust, creditors may still look to the trust’s assets to satisfy the debt.

    Special Needs Living Trusts

    A special needs trust is a specific type of trust created to provide assets to an individual in a way that does not compromise their ability to receive government benefits that have an asset limit, such as Medicaid or Social Security Disability.

    First Party Special Needs Trusts

    If a disabled person owns significant assets but is concerned that these assets will prevent them from taking advantage of government funded benefits, he or she may set up a type of irrevocable, self-settled living trust designed specifically for this purpose. The ownership of the assets are then transferred to the trust and the grantor no longer has control over how those assets are received. This allows the grantor to omit the trust assets when calculating the value of the grantor’s total assets on government benefit applications. The trust assets are considered “non-countable” assets.

    Third Party Special Needs Trusts

    A third party special needs trust can be either revocable or irrevocable. It is a type of trust created by a grantor to provide assets to a third party beneficiary who is disabled without affecting their eligibility for government assistance but still allowing them to have many comforts that they would not otherwise have if they were solely relying on government benefits as their source of income. For example, parents with a disabled child may set up a third party special needs trust that disperses assets during the lifetime of the parents, as well as after their deaths.

    Spendthrift Living Trusts

    Almost any type of living trust can be made a spendthrift trust. Essentially, this prevents the beneficiary of the trust from selling or giving away interests in the trust.

    Pros & Cons of a Living Trust

    There are many benefits to creating a living trust, however, there are also downsides depending on your unique situation.

    Living Trust Benefits

    Living trusts can be beneficial in many different ways, including:

    Avoiding Probate

    As mentioned above, a living trust, whether revocable or irrevocable, will help avoid probate. Any assets that are owned by the trust at the time of the grantor’s death will not enter into probate but will instead pass directly to the beneficiary named in the trust.

    Avoiding Disputes

    A living trust, especially a revocable living trust, is harder to dispute than a will because the grantor typically continues to have involvement in the trust after it is created. While many people will bring a claim after an individual’s death that he or she was not of sound mind when creating a will, such a claim is generally more difficult to bring against the validity of a living trust.

    Avoiding Guardianship

    A living trust can be beneficial in cases where the grantor has become incapacitated or unable to manage their financial affairs. Instead of a family having to go to court and obtaining a guardianship over an incapacitated individual, the individual’s successor trustee steps in and is able to manage the trust and its assets without the need for a time consuming and costly court battle.

    Living Trust Caveats

    Although the benefits of creating a living trust are many, there are a few caveats, including:

    Living Trusts Can be Time Consuming and Costly to Establish

    Because living trusts cover all types of assets, they can be costly and time-consuming to set up. Additionally, the continued involvement of the grantor is necessary in a living trust. It is not recommended that a grantor attempt to cut the costs of establishing a living trust by going the do-it-yourself route. Although having a lawyer-drafted trust costs more, it is well worth it in the end to be confident that your assets are protected and will be distributed according to your wishes.

    Revocable Living Trusts Do Not Protect Your Assets

    As mentioned earlier, a revocable living trust can still be accessed by creditors. Because you maintain control over this type of living trust prior to your death, creditors can count the assets contained in the trust as your own. This type of trust may not be the right choice for individuals who wish to protect their assets from creditors.

    How to Choose If a Living Trust Will Meet Your Estate Planning Needs

    There are many different types of living trusts and many estate planning techniques in general, so it can be difficult to know which one is right for your situation. Discussing your individual estate planning needs with an experienced estate planning attorney is the first step to learning what types of living trusts may offer the solutions you are looking for and which one may be right for you.

    Do You Need To Speak With A Lawyer About Estate Planning?

    If you need to speak with an experienced estate planning lawyer please contact us online or call our 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 are "issue" in New York estate law?

    Definition of ISSUE: (noun) / descendants in any degree from a common ancestor

    Plain English translation: Issue refers to a person’s lineal descendants, such as children, grandchildren, great-grandchildren, etc. This differs from “heirs”, which could include other relatives besides lineal descendants.

    Do You Need To Speak With A Lawyer About Estate Planning?

    If you need to speak with an experienced estate planning lawyer please contact us online or call our 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.