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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FAQ: What is a Testator?
Definition of TESTATOR: (noun) / one who makes and executes a last will and testament, for example, if Tiffany has a will drafted and she executes the will, then Tiffany is referred to as the Testator. When Tiffany subsequently passes away, she is said to have died “testate”, or with a will.
The word "testatrix" used to be regularly applied as the female equivalent of "testator". It is less common today especially in the Surrogate's Courts of the 5 boroughs of New York City. Usage of the suffix "-trix" as applied to any word to indicate the female version is becoming increasingly outdated.
FAQ: What is a Trustee?
Definition of TRUSTEE: (noun) / one who acts on behalf of a trust; one who holds legal title to the assets of a trust
The Trustee is in charge of administering the trust, including investing trust assets, keeping records, and making distributions. The Trustee has a fiduciary obligation to the Beneficiaries, meaning that the Trustee must act in the best interest of the Beneficiaries.
Video: How Do I Find Out if I am in a Will?
In this video interview, Attorney Daniel Antonelli, partner at Antonelli & Antonelli, noted probate and estate administration law firm in New York, NY, discusses how you can find out if you are in somebody’s will after they die.
Antonelli & Antonelli represents clients throughout New York City in the areas of Probate, Estate Administration & Estate Litigation.
Daniel Antonelli’s website, blog and additional videos cover questions frequently asked by clients, legal trends and legal news. He also publishes a Google+ Collection, Your Legal Questions Answered, where he answers one submitted question per week. You also are invited to arrange a consultation to discuss your legal needs.
Please subscribe to the Antonelli & Antonelli Legal YouTube channel so you will be notified of the additional videos we add regularly.
I’m in a Will When Do I Get My Money?
When do you get your money if you are in a will?
That’s a tough question! The answer changes with every will and estate.
If you expect to get your money quickly, you may be disappointed. It usually takes seven months to a year, depending on the complexity of the estate.
Learn more in this brief video.
Daniel Antonelli’s website, blog and additional videos cover questions frequently asked by clients, legal trends and legal news. He also publishes a Google+ Collection, Your Legal Questions Answered, where he answers submitted questions.
Please subscribe to the Antonelli & Antonelli Legal YouTube channel so you will be notified when additional videos are added, which will happen on a regular basis.
You also are invited to arrange a consultation to discuss your legal needs.
What are the responsibilities of the executor of a will?
In this interview, Daniel Antonelli, Esq., partner in Antonelli & Antonelli Attorneys at Law, noted New York, NY probate and estate planning law firm, explains the role, responsibilities and liabilities of the executor of a will and estate.
An executor is in charge of running the estate and distributing the assets. As Attorney Antonelli notes in this brief interview, an executor has considerable responsibility and liability.
Please subscribe to the Antonelli & Antonelli Legal YouTube channel. We’ll let you know when we add new videos, which we do on a regular basis.
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* Google+ Collection (Your Legal Questions Answered)
What is the Probate Process in New York?
If you’ve read anything about estate planning, you’ve likely heard the term “probate” at least once or twice. Probate is an important part of administering the estate of a person who has passed away, but it can be difficult to comprehend and even more challenging to actually navigate. Understanding the basics of the probate process can help you prepare for what will happen when a last will and testament is probated and what you can do to make the process more efficient and cost effective.
What Is Probate?
According to the American Bar Association, probate is “the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries.” Simply put, probate is when a court essentially says: “This will is valid.” However, the court will deny probate if the will was not properly executed, if it was revoked, if the person writing the will did not have capacity, or if the will was a product of fraud or undue influence.
What if a Person Dies Without a Will?
Although a will is a very important document to have, many people do not have a will in place. If a person dies without a will, the estate is subject to the laws of intestate succession, which dictate how a decedent’s assets must be distributed when no will exists.
The laws of intestate succession allow only certain relatives, such as the surviving spouse or the decedent’s children, to inherit the decedent’s assets. Partners who were not married, friends, and other people who are not related to the decedent will typically not receive anything. When a person dies without a will, the process is referred to as an administration proceeding. The terms “probate” and “administration” are sometimes used interchangeably and also can refer to the estate representative’s action after appointment such as collecting assets and making distributions.
What Happens During Probate?
During probate, the Surrogate’s Court is asked to appoint an executor to represent the estate. Upon appointment, the executor is responsible for gathering information about the decedent’s assets, income, and debts. The executor must then pay the expenses and debts of the estate before distributing the balance to the beneficiaries in the will.
The executor’s job is extensive. He or she has many responsibilities depending on the nature of the estate: Is there real estate to be sold? Is there rent to be collected? Are there tax returns to be filed? Assets or income to be found? These questions, and many more, are must be answered by the executor to ensure that the job is done properly. The executor has a legal obligation to fulfill his or her duties with prudence and diligence.
Uncontested Probate vs. Contested Probate
In some cases, probate of a will may be contested. There are five grounds for a will contest:
- The decedent lacked testamentary capacity at the time that the will was created. For example, the decedent may not have known what assets they had, who the beneficiaries are, or what the purpose of a will is.
- The will was not properly executed. For example, it lacked the signatures of appropriate witnesses or was not signed by the testator.
- The will was revoked. For example, if the testator destroyed the will or executed a new will.
- The will was procured by fraud or undue influence. These two similar bases for a will contest essentially mean that the testator did not execute the will by his or her own volition. For example, the testator was tricked or unduly pressured into naming certain beneficiaries.
If you suspect that a family member’s will is going to be challenged during probate, or you wish to challenge a will, it is imperative that you work with an experienced New York probate attorney. A veteran lawyer will give you the information and resources needed to present a strong case to the court.
Should You Try to Avoid Probate?
You may have heard of people engaging in estate planning so as to avoid probate. Some basics techniques allow an asset to be transferred upon death without the need for probate:
- An asset placed in a trust does not need to be probated;
- Life insurance policies with designated beneficiaries transfer directly to the beneficiaries; and
- Jointly held assets, like a joint bank account, transfer directly to the surviving owner.
Benefits of Avoiding Probate
The cost of probate can be high, especially when you factor in attorney’s fees. Probate can also be time consuming and lengthy, since it takes time to file the necessary documentation and navigate the court system. The process can become even lengthier if the will is contested. Probate is also a public matter, so decedents who wish to keep their assets and affairs private would benefit from avoiding the process altogether. This being said, probate is a manageable process that is often routine for an experienced attorney.
Drawbacks of Avoiding Probate
Although there are benefits to avoiding probate, there are also some caveats that must be considered. The up-front cost of setting up a trust is usually higher than the cost of setting up a will. Trust tax rates may create a larger tax liability. And additionally, there is no guarantee probate will be avoided completely.
How to Make Probate as Cost Effective & Efficient as Possible
Although the probate process can seem intimidating, there are ways to make it as cost effective and efficient as possible. The primary way of doing so is to work with an experienced New York probate attorney. There are few people who truly understand New York probate laws and how they can potentially affect individual estates. By working with a veteran estate lawyer with a solid track record in probate matters, you can minimize time and cost, and handle probate with confidence.
FAQ: What is a Distributee? What is an Heir at Law?
Definition of DISTRIBUTEE: (noun) / a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution (New York Estates, Powers, & Trusts Law §4-1.1)
A distributee is also often referred to as an “heir-at-law” and is less formally known as “the next of kin”. When a person dies intestate (without a will) the decedent’s distributees will be the ones entitled to receive the decedent’s assets.
Under New York law, the distributees are determined in the following order:
- Spouse and children. If a decedent leaves a spouse and children, the spouse and children are considered distributees. However, if there is only a spouse and no children, the spouse is the sole distributee. Conversely, if there are children and no spouse, the children are the distributees.
- Siblings and issue of pre-deceased siblings, if any (nieces and nephews)
- Grandparents and issue of predeceased grandparents (1st cousins)
- Great-grandparents and issue of predeceased great-grandparents (1st cousins once removed)
Note: “Issue” refers to lineal descendants: children, grandchildren, great-grandchildren.
In order to determine the decedent’s distributees, start with number one on the list above and work your way down until you reach a level where at least 1 survivor exists. The level at which at least 1 survivor exists is the surviving class. No one at a lower level is considered a distributee. For example, if the decedent was survived by a person on level 1, such as a spouse or child, then no one on a lower level is considered a distributee, such as a parent, sibling, etc
FAQ: What is a Public Administrator?
The Public Administrator administers the estates of deceased persons (“decedents”).
There is a Public Administrator in every county in the City of New York. The Public Administrator of each county administers the estates of that county’s residents who die without anyone who is willing or able to administer the estate.
The Public Administrator’s primary duty is to administer estates that would otherwise remain unadministered: to protect the decedent’s property from waste, loss or theft; make appropriate burial arrangements when no close relative is available to make the decisions; conduct thorough investigations to discover all assets; liquidate assets at public auction or distribute assets to heirs; pay the decedent’s bills and taxes; and to locate persons entitled to inherit from the estate and ensure that the legal distributees receive their inheritance.
The Public Administrator handles estates in several instances, including but not limited to the following:
- When no one else is willing or able to administer the estate
- When there are no known heirs
- When the executor or administrator cannot serve due to illness, death, conviction of a felony, or is otherwise disqualified from serving and no one else is available
To complete this process, the Public Administrator may employ accountants, auctioneers and others to assist with the administration of the estate. An administrator must inventory the property of the decedent, pay taxes, make funeral arrangements, pay the funeral bill and other debts and claims, and sell such of the decedent’s property as is necessary to accomplish this end. At times the Public Administrator must defend the estate and bring lawsuits to resolve civil difficulties.
FAQ – What is Probate & Estate Administration in NY?
In New York, the Surrogate’s Court handles cases involving the probate of decedent’s wills and the administration of decedent’s estates. The interpretation of this legalese is rather simple. When a person dies with a will, that person is said to have died “testate” and the will must be probated (Latin term meaning “to prove”) in order to carry out the terms of the will. When a person dies without a will, that person is said to have died “intestate” and the estate is administered according to the law of New York since there is no will directing the transfer of assets. The judge in Surrogate’s Court is called, appropriately, the Surrogate. In certain counties, such as New York County (Manhattan) and Kings County (Brooklyn), there are two sitting Surrogates. In other counties, such as Queens County and Bronx County, there is only one Surrogate hearing cases.
If a person has executed a will, that person (the “testator”) has memorialized her wishes concerning such questions as:
- Whom do I want to receive my money, real estate, and other property?
- Whom do I want to be named as guardian of my minor children?
- Whom do I want to be in charge of handling my estate after I am gone? (Who do I want to be my executor? aka estate representative or fiduciary)
- How do I want my remains to disposed of (e.g. burial, cremation)?
The will serves as the guidelines for handling the estate, which is controlled by the executor. Typically, the named executor in the will petitions the Surrogate’s Court, with the help of an estate attorney, to have the will admitted to probate and the named executor appointed as such by the Court. The petition is filed in the probate department. Admitting the will to probate means proving that the will is valid. The will must be properly executed; the testator must have possessed testamentary capacity (the necessary mental capacity to execute a will); the will must not have been revoked by the testator; the testator had to be acting under her own free will (no undue influence); and the will must not be the product of fraud. If the Surrogate is satisfied that the document is the legitimate last will and testament of the decedent, then the will is admitted to probate, the named executor is appointed by the Court, and the executor gains the authority to act on behalf of the estate in order to carry out the decedent’s wishes. In probate, those named in the will as receivers of gifts are known as beneficiaries.
If a person dies without a will, then the estate is distributed according to the laws of intestacy which are laid out in New York’s Estates, Powers, & Trusts Law (EPTL). With no will, the estate representative is known as the administrator. Although anyone with a monetary interest may petition the Court to have an administrator appointed, New York’s Surrogate’s Court Procedure Act (SCPA) lays out the order of priority as to who may serve as administrator:
Upon consent of all the relatives with a prior right (lower number on the above list), a relative with a subsequent right may serve as administrator. In other words, if the surviving spouse and children consent to the appointment of a grandchild as administrator, such grandchild may be appointed. In administration, those entitled to gifts are known as distributees.
The estate representative, whether an executor or administrator, is a fiduciary of the estate. This means the representative must act in the best interest of the estate and the distributees/beneficiaries. The fiduciary must act prudently and refrain from acting in the fiduciary’s own self-interest. The fiduciary is liable for damage caused by the fiduciary’s negligence.
The process, collectively known as estate administration, can be generally divided into three parts: 1) Appointment; 2) Marshalling Assets; and 3) Accounting.
Appointment generally consists of petitioning the Surrogate to appoint the estate representative (and admit the will, if any, to probate). Drafting the petition and gathering the necessary paperwork can be done in a matter of days or weeks depending on the complexity and difficultly involved. 2-4 weeks is a reasonable estimate for filing the petition. The Court will require an additional 2-4 weeks to process the petition. Therefore, a total of 4-8 weeks should be the anticipated length of the first part of the process. However, various issues can, and often do, arise and delay the proceeding.
Marshalling is the collecting of assets – selling real estate or personal property, transferring bank accounts in the estate account, liquidating stocks and other securities, and generally transferring all monies into the estate account. The estate account should be opened as soon as the estate representative is appointed. An Employee Identification Number (EIN) is required to be obtained from the IRS. (Keep in mind this number has nothing to do with employees.) Estate debts should also be ascertained in this second stage. The length of this stage varies widely and depends largely on what needs to be done in order to liquidate the assets. For instance, real estate usually takes longer to sell than a stock account, and most bank accounts are easily transferred into the estate account. Generally though, this middle stage is completed within 6 months from the date the fiduciary is appointed.
Accounting is the final stage of the probate and estate administration process. In this final stage, debts are paid and the fiduciary accounts for her actions by drafting an account. In an informal accounting, which is most common, the written account is provided to all interested parties for review. The account lists all the credits and debits of the estate along with a proposed distribution. If the parties approve the account, they sign a Receipt & Release. This document indicates that the party received the appropriate distribution and releases the fiduciary from liability. This final stage should not take more than a few weeks to complete, assuming there are no objections to the account.
A word of caution regarding timeline estimates – these are only estimates; problems often arise unexpectedly and delay the process. If one party decides to contest any element of these proceedings, the aforementioned timeline is no longer applicable. However, contests aside, if you are involved in an estate proceeding you should prepare yourself for a year long process that is subject to delays.
Antonelli & Antonelli, Attorneys at Law – Representation of Executors, Administrators, Creditors, and Heirs
While the process of administering an estate can appear overwhelming, our firm brings experience and care to an often trying situation. We have successfully represented many clients in their capacity as estate fiduciary. From petitioning the Surrogate to filing estate tax returns, we have probate and estate administration down to a science.
We also represent creditors of estates in filing claims and getting the estate process started where no one is taking action. In situations where heirs believe their inheritance is imperiled, for any reason, we help to make certain our clients receive what they are entitled to. And when a perilous situation turns into litigation, our firm vigorously fights for what is right. We have successfully represented clients in a variety of estate litigation matters.
More information is available on our Probate & Estate Administration page.
FAQ – Can a Copy of a Will be Admitted to Probate?
When a person passes away in New York State and their original Last Will & Testament cannot be located, New York law may allow a copy of the will to be admitted to probate. In order to probate a copy of a will, the Surrogate’s Court requires the person offering a copy of the will for probate to prove three key elements:
- That the will has not been revoked;
- That the will was properly executed in the same manner as required for an existing will; and
- All provisions of the will must be clearly and distinctly proven by at least two credible witnesses or by a copy or draft of the will, proven to be true and complete.
So what does all this mean? We will look at each of the three elements in order to demonstrate what must be proven to the Court in order to admit a copy of a will to probate.
Proving the Will Was Not Revoked:
Under the laws of New York State, a will is revoked by:
- The execution of a subsequent will;
- A writing of the testator (a person who has made a will) clearly indicating an intention to revoke the will which is executed with the same formalities of a will; or
- By ripping, burning, tearing or another act of destruction.
If the testator was in possession of the original will during the testator’s life and the will cannot be located after the testator’s death, a presumption arises under New York law that the testator destroyed the will with the intention of revoking it. However, it is possible to rebut this presumption with sufficient evidence showing that the will was not revoked.
Proving the Will Was 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 of 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 testators 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.
Under New York law, if the execution of a will was supervised by an attorney, there is a presumption that the will was executed in compliance with the above formalities. In addition to these technical formalities, the proponent of the will also has the burden of proving that the testator had the mental capacity required to execute a will.
Proving All Provisions of the Will:
New York State law requires that at least two credible witnesses attest to the full contents of the will. Typically, the attesting witnesses are unable to recall every single provision of the will in detail. Therefore, the law allows a copy of the will to be admitted to probate on the testimony of the attorney that drafted the will, a secretary who typed the will, or a trust officer nominated as a fiduciary in the will who can identify a copy or draft of the will and recall its provisions. They are not required to recall the exact language contained in the will but must be able to recall the substance of the will.
In situations where the heirs at law are not the same individuals as those named in the will, then a will contest may arise. A will contest is a legal dispute concerning the validity of a will, or the legitimacy of a copy of a will.
So, can you admit a copy of a will to probate? The answer is “maybe”, that is, if you have all the right evidence. Due to the complexities involved in determining and obtaining the right evidence, you should speak with an experienced estate attorney to assist in attempting to probate a copy of a last will and testament.