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 Intestacy? What is Testacy?
The following information focuses on New York estate law.
Intestacy describes a person’s estate where the decedent passed away without a last will and testament. This is known as dying intestate. Conversely, Testacy describes a person’s estate where the decedent passed away with a last will and testament. This is known as dying testate.
Whether a person dies intestate or testate has a significant effect on how the decedent’s estate is distributed upon death. The main difference is that if a person dies testate, then the decedent’s assets are transferred according to the terms of the will. If the person dies intestate, then the decedent’s assets are transferred to the distributees according to the laws of intestacy of New York State.
Two different court proceedings are in order depending on whether the decedent died with a will. If there was no will, then the proper procedure in New York City is to file a Petition for Administration. If the decedent died with a will, then the proper procedure is to file a Petition for Probate.
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 a Distributee?
In this video, Daniel Antonelli, Esq, explains who can inherit from you if you die without a will. The legal term for these people is Distributees.
Attorney Antonelli’s additional You Tube videos cover questions frequently asked by clients, along with legal trends and legal news.
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.
Video: Do I Need a Lawyer for My Will?
In this video interview, Attorney Daniel Antonelli, partner at Antonelli & Antonelli, a noted probate and estate administration law firm in New York, NY, discusses whether you really need a lawyer to write your will.
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.
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.
Who inherits property and assets when there is no will?
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.
- 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.