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 an Administrator’s bond in Surrogate’s Court?

    An Administrator’s bond is a type of insurance policy that guarantees the proper administration of an estate. In Surrogate’s Court, an Administrator is usually required to post a bond before he or she qualifies to receive the appointment (also known as being granted Letters of Administration). Executors are usually exempt from the bond requirement because most Last Wills & Testaments authorize the Executor to serve without a bond. A bond is also not required upon the consent of all necessary parties. Bonds protect estate beneficiaries and creditors from the negligent and intentional acts of fiduciaries that cause harm to the estate.

  • FAQ: Who May Serve as Executor of a Will in New York?

    In New York, when a person dies testate the last will and testament usually names an executor.  It is typically the nominated (named) executor who serves in that capacity – but not always.   Sometimes the nominated executor is deceased, disqualified as a potential fiduciary, or simply does not want the job.  Who is then entitled to serve as executor of the estate?

    First: some potential reasons why the executor nominated in the will might not be able to serve.  The nominated executor is not permitted to serve if he or she is:

    • Under the age of 18;
    • Incompetent (lacks understanding);
    • A non-resident alien, that is, a person who is neither an American citizen nor lives in the United States;
    • A convicted felon (or convicted of a crime in another state that would be a felony under New York law).

    (Surrogate’s Court Procedure Act §707)

    Further, individuals who do not “possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who are otherwise unfit to the execution of the office” are not eligible to serve as executor.  Nor are individuals who are deemed ineligible in the Surrogate’s discretion.  Surrogate’s Court Procedure Act §707.

    Most wills name an alternate executor, which is important when the named executor does not serve.  In some situations, the will does not name an alternate executor or the alternate executor cannot or will not serve.  If this is the case, a person not named in the will might seek to be appointed to represent the estate.  Such a person is referred to as “administrator c.t.a.”  (And that person seeks Letters of Administration c.t.a.)  The abbreviation “c.t.a.” stands for cum testament annexo, Latin for “with the will attached”.  An administrator c.t.a. functions like an executor, having the authority to collect and distribute the decedent’s assets pursuant to the terms of the will (not the laws of intestacy).

    Under New York law, the following individuals, in order of priority, may serve as Adminstrator c.t.a:

    1. The sole beneficiary named in the will (if any), or if he is deceased, his fiduciary;
    2. One or more of the residuary beneficiaries, or if any is deceased, his fiduciary;
    3. If no eligible person under sections 1 and 2 above will accept, the Surrogate may issue letters to one or more individuals interested in the estate, or if any is deceased, to his fiduciary.
    4. If no eligible person under sections 1, 2, and 3 above will accept (and no appointment is made upon the consent of all beneficiaries), then letters issue to the Public Administrator.
    5. If no one under the above sections will accept letters, the Surrogate may issue them to the petitioner; if the petitioner does not accept, then letters may issue to any person designated by the Surrogate (however, this rarely happens).

    Letters may also be granted to a person not otherwise entitled to serve if all the beneficiaries are eligible to serve and they all consent to the appointment.

    For example, suppose Sam passes away leaving a will, in which he leaves his entire estate to his sister, Fiona.  Fiona is a fashion model who is constantly traveling the world for photo shoots and does not have the time to take on the responsibilities of an executor.  Assuming Fiona is eligible to serve as executor, she may designate her trusted friend Alex to serve as administrator c.t.a. if he is willing to accept.  This is true even though Alex has no interest in the estate.

  • FAQ: Will Contests - Do I have grounds for contesting a will? (Part 4 of 6)

    FAQ – Will Contests: Do I have grounds for contesting a will?  (Part 4 of 6)

    Grounds for Contesting a Will

    Undue Execution
    Revocation
    Incapacitation <<<<

    Fraud
    Undue Influence

    In the previous posts in this series on will contests in New York, we discussed who may contest a last will and testament and on what grounds a will may be contested.  In this Part 4, we will go into further detail on the third ground on which a last will and testament may be contested  – incapacitation aka lack of testamentary capacity.  Incapacitation is the claim that the Testator did not have the testamentary capacity required to execute a last will and testament.  Remember, the information below focuses on will contests in New York and more specifically on will contests in New York City.

    Lack of Testamentary Capacity:

    In order to be deemed to have the capacity necessary to execute a will, a testator must generally understand:

    1. What property he owns;
    2. Who are the natural objects of his bounty; and
    3. That he is executing a will and its implications.

    The standard for testamentary capacity is a relatively low one when compared with the standard for capacity to execute a contract.  The Testator need only have testamentary capacity at the time the will was executed.  So, a testator who suffered from senility could be deemed to have had testamentary capacity if, at the time the will was executed, he was experiencing a lucid interval.

    Only experts and the witnesses to the will can offer their opinion as to whether the decedent had testamentary capacity at the time the will was executed.  Other parties can testify about the decedent’s actions but cannot offer their opinion as to whether the testator possessed the capacity required to execute a will.

  • Who inherits property and assets when there is no will?

    When a person passes away in New York without a will (intestate), the heirs at law are entitled to receive the decedent’s assets.  

    Who are the Heirs?

    If the decedent had no will, then the heirs are determined by New York State Law:

    • If the decedent is survived by a spouse and no issue, then the entire estate goes to the spouse.
    • If the decedent is survived by issue but no spouse, the issue will split the estate evenly.
    • If the decedent is survived by both a spouse and issue, the spouse gets the first $50,000.00.  Then, the spouse gets half of whatever is remaining (the “residuary”) and the decedent’s issue split the other half equally.

    For example, let’s assume the decedent had a spouse and three children and the decedent’s estate is worth $230,0000.00.  The spouse gets $50,000.00 of the top, leaving $180,000.00.  Then, the spouse gets half of what is remaining, here $90,000.00.  This leaves $90,000.00 to be split equally among the decedent’s three children, so each child would receive $30,000.00.  The surviving spouse receives a total of $140,000.00 ($50,000.00 + $90,000.00).

    Let’s keep going.

    • If the decedent is survived by no spouse and no issue, then the entire estate goes to the decedent’s parents equally. If only one parent survives the decedent, then the entire estate would go to the surviving parent of the decedent.
    • If the decedent is not survived by a spouse, issue or parents, then the estate goes to the decedent’s siblings and children of pre-deceased siblings (nieces/nephews) in equal shares.

    For example, let’s assume that the decedent had 4 brothers and sisters, A, B, C and D.  C passed away a number of years before the decedent and had one child, E.  Let’s assume that the decedent’s estate is worth $100,000.00.  The estate would be divided into 4 equal shares of $25,000.00 and A, B, D, and E (child of pre-deceased sibling, C) would each get a share.  Now, assume the same facts except now assume that C passed away before the decedent but did not have children.  In this scenario, the estate would only be divided into 3 shares and A, B and D would each receive an equal share.

    Let’s go even further.

    • If the decedent is not survived by a spouse, issue, parents, siblings or children of predeceased siblings, then the estate goes to the decedent’s grandparents, with half going to the maternal grandparents and the other half going to the paternal grandparents. But grandparents rarely survive their grandchildren, so usually, the estate goes to the issue of pre-deceased grandparents (aunts, uncles, or 1st cousins), again half to the maternal side and half to the paternal side.

    Let’s again assume that the estate is worth $100,000.00 and the decedent was survived by 2 cousins on the maternal side and 4 cousins on the paternal side.  The estate gets divided into 2 equal parts ($50,000.00 for maternal and $50,000.00 for the paternal). On the maternal side there are 2 cousins, so each would receive $25,000.00.  On the paternal side, however, there are 4 cousins, so each paternal cousin would receive $12,500.00.

    Lastly.

    • If the decedent is not survived by any of the above, then the estate goes to the great-grandchildren of the decedent’s grandparents (1st cousins once removed), half to the maternal side and half to the paternal side.  Like the example above, the paternal side and maternal side each receive equal halves of the estate.  Then, cousins on each side would divide that one-half share equally by the number of first cousins on that side.

  • FAQ: Will Contests - Do I have grounds for contesting a will? (Part 5 of 6)

    Grounds for Contesting a Will

    Undue Execution
    Revocation
    Incapacitation

    Fraud <<<<
    Undue Influence

    This segment of our series on will contests in New York brings us to fraud as a ground for contesting a last will and testament.  Remember, the information below focuses on will contests in New York and more specifically on will contests in New York City.

    Fraud:

    The person challenging the validity of the decedent’s will has the burden of proving that fraud was committed.  In order to prove fraud, the objectant to the will must show by clear and convincing evidence that a false statement was made to the testator that induced him to make a will, and that he disposed of his property differently than if the fraudulent statement had not been made.  There must be a clear link between the fraudulent statement and the making of the will.

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

    Grounds for Contesting a Will

    Undue Execution
    Revocation
    Incapacitation
    Fraud
    Undue Influence <<<<

    The final part of this series on will contests in New York focuses on undue influence as a ground for contesting a will.  Undue influence is one of the more common grounds and is often associated with incapacitation.  This is due to the fact that a testator who is, or may be, incapacitated is particularly vulnerable to undue influence.

    Undue Influence:

    Undue influence is the final ground for contesting a will. The Objectant has the burden of proving that undue influence was exerted.  Undue influence is defined as ‘influence that amounts to true moral coercion that destroys the Testator’s ability to act independently.’  The Objectant must produce substantial evidence that the testator’s actions did not reflect his actual wishes.

    Undue influence is a question of fact, and in order to prove undue influence, the Objectant must show that the person who exerted undue influence was a beneficiary under the will, that he participated in the preparation or execution of the will, and that he exercised influence over the testator.

    The court will consider many factors, including the relationship between the testator and the person who allegedly exerted undue influence, the opportunity for exerting that influence, the physical and mental condition of the testator, the testator’s contact with family members or loved ones, the testator’s dependence on the influencer, and the provisions of the will along with the provisions of any prior will.  This is not an exhaustive list of factors, and the court will consider any relevant circumstances.

    In most cases, a showing of motive and opportunity alone are not enough to support a finding of undue influence. However, if the testator made a gift to someone in a confidential relationship with him (such as an attorney, nursing home employee, doctor or guardian) and the Objectant can provide some other piece of evidence that could point to undue influence (for example motive and opportunity), then the jury can infer that undue influence was used even though no direct proof is offered.

  • 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.

  • 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.

  • 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.