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 pecuniary interest?

    Definition of PECUNIARY: (adjective) / of or relating to money

    In estate law, a pecuniary interest refers to one’s interest in an estate that relates to money.  Likewise, a pecuniary loss refers to a loss that can be measured in terms of money.

    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.

  • 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.

    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.

  • 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.  

    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.

  • 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.

    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.

  • 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.

    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.

  • 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.

    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.

  • 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.

    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 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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    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 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. 

    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 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:

    1. An asset placed in a trust does not need to be probated;
    2. Life insurance policies with designated beneficiaries transfer directly to the beneficiaries; and
    3. 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.

    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.