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 “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.

  • What Does it Mean for a Gift to “Lapse” in New York Estate Law?

    Definition of LAPSE:
    (verb) / the failure of a testamentary gift, especially when the beneficiary dies before the testator dies (Black’s Law Dictionary).

    Plain English translation: Not all gifts written into a last will make their way to the named beneficiary. In some circumstances, a gift will fail or lapse. There are several reasons why a gift could lapse, including the death of a beneficiary and a divorce between the testator (the one making the will) and the beneficiary. In these circumstances, the gift is extinguished.

    Example 1: 
    Taraa wrote a last will which directs that, upon her death, her engagement ring be given to her best friend, Myrna. Taraa passed away in 2019, and Myrna died two years earlier in 2017. Since Myrna predeceased Taraa, the gift to Myrna lapses—it doesn’t occur. Neither Myrna, nor Myrna’s estate is entitled to the ring.

    Example 2:
    Now let’s say Taraa left her entire estate to her husband, Alvin, but Taraa and Alvin got divorced in 2017, two years before Taraa’s death in 2019. In this case, Taraa’s gift of her entire estate to Alvin lapses—he gets nothing because of the divorce.

    Then, what happens? Learn about how lapsed gifts are treated and New York’s anti-lapse statute in our article, What Happens to a Lapsed Gift in New York Estate Law?

    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 "Lifetime Trust?"

    Definition of LIFETIME TRUST: (noun) / a trust not created by a will

    Plain English translation: A lifetime trust is a trust created during a person’s lifetime as opposed to a trust created through the person’s will, which is referred to as a testamentary trust.

    A lifetime trust directs the distribution of property during both the grantor’s lifetime and after death. Any person who is over the age of eighteen years old may create a lifetime trust. Additionally, in New York, a lifetime trust is deemed irrevocable unless it expressly provides that it is revocable.
     

    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 "Domicile" In New York Estate Law?

    Definition of Domicile: (noun) / a fixed, permanent residence and principal home to which a person wherever temporarily located always intends to return

    Plain English translation: One’s domicile is one’s primary residence.

    Under New York estate law, you can have multiple residences (a home, country home, ski house, beach house), but you can only have one domicile.
     
    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.

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

    Definition of CREDITOR:
    (noun) / any person having a claim against a decedent or an estate.


    Plain English translation: If a decedent owed anyone money at the time of the decedent’s death, that person or entity is referred to as a creditor. A creditor has essentially the same rights against a person’s estate as the creditor would have against the person if he or she was alive.

    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 “Court” in New York Estate Law?

    Definition of COURT:
    (noun) / the Surrogate’s Court, including any judge or Surrogate assigned, elected, or appointed to serve as judge of the court.


    Plain English translation: When you see the term “court” used in connection with estate matters in New York, it is specifically referencing the Surrogate’s Court. It also refers to the presiding judge as in, “if it pleases the Court” or “we ask the Court to hold in favor of the petitioner.”

    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 The Definition of "Testamentary Beneficiary" In Regards To New York Estate Law?

    Definition of TESTAMENTARY BENEFICIARY: (noun) / a person in whose favor a disposition of property is made by will (New York Estates, Powers & Trusts Law § 1-2.18)

    Plain English translation: a person entitled to property under a will.

    Example: Bob’s last will includes the following clause: “I leave my Rolex watch to my son, Dylan.” Dylan is a testamentary beneficiary of his father’s last will.

    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.