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 "will" in New York estate law?
Definition of WILL:
(noun) / a last will, including all the codicils thereto
This is the definition set forth by the New York Estates, Powers, and Trusts Law as well as the Surrogate’s Court Procedure Act. But what is a will, really?
Plain English translation: A last will is a legal document that provides a person’s last wishes with respect to property and dependents upon that person’s death. It is a set of instructions for disposing of a person’s property, nominating an executor to oversee the transfer of that property, and nominating someone to take custody of minor children.
What is "property" in New York estate law?
Definition of PROPERTY:
(noun) / anything that may be the subject of ownership and is real or personal property, or is a chose in action1
Plain English translation: Property is anything that can be owned. Real property is land. A house, building, or other structure is improved real property. A condominium apartment owner owns a fraction of the land on which the building sits. Personal property is essentially all other property. A “chose in action” is the right to recover personal property that is wrongfully held by another.
1 EPTL § 1-2.15; SCPA § 103 (44)
What is an "infant" in New York estate law?
Definition of INFANT or MINOR:
(noun) / a person who has not attained the age of eighteen years1
Unlike its everyday meaning, "infant" does not mean a very young child or baby. It is the legal term, within the context of New York estate law, to refer to a minor.
1 New York Estates, Powers & Trusts Law §1-2.9-a; Surrogate’s Court Procedure Act § 103 (27)
What is an "incompetent" in New York estate law?
Definition of INCOMPETENT:
(noun) / a person judicially declared to be incapable of managing his or her own affairs1
Plain English translation: In order for a person to be considered legally incompetent, a court must make a determination that the person cannot manage himself or his affairs by reason of age, mental illness, or otherwise.
1 New York Estates, Powers & Trusts Law § 1-2.9; SCPA § 103 (26)
What is an "estate" in New York estate law?
Definition of ESTATE: (noun) / ownership interest
Depending on the context, “estate” may mean: the interest which a person has in property or the aggregate of property which a person owns (New York Estates Powers & Trusts Law § 1-2.6).
Plain English translation: “Estate” is used many different contexts but, at its simplest, it just means ownership.
A person can own real estate, meaning an ownership interest in land, usually referred to as title, as in “the landlord holds title; the tenant merely has a right of possession.”
“Trust estate” refers to property held by a trust where the trustee holds legal title (right to manage) and the beneficiary holds beneficial title (right to benefit from).
“Probate estate” refers to property passing through one’s last will.
When a living person refers to his or her “estate” it is usually a reference to the person’s aggregate ownership, as in “I’ve built a large estate of land, stock, and commodities.”
What is a "creator" in New York estate law?
Definition of CREATOR: (noun) / a person who makes a disposition of property
New York Estates Powers & Trusts Law § 1-2.2 provides this general definition. However, the usage varies depending on context. A “disposition of property” means a direction of where the property will pass or to whom it will pass as in “the creator disposed of his house by leaving it to his daughter through his trust.”
The term “creator” is typically used in the context of a trust, whereas the term “testator” is typically used in the context of a will. “In her will, the testator left all her jewelry to her son.” The creator “creates” the document that disposes of the property.
Synonyms include trustor and grantor.
What is a "codicil" in New York estate law?
Definition of CODICIL: (noun) / a supplement to a will
New York Estates Powers & Trusts Law defines a codicil as a supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will (EPTL § 1-2.1).
Plain English translation: a codicil is similar to an addendum or rider to a contract; it typically changes only some of the terms included in the will.
Codicils have become rare since the advent of modern computers and word processing templates. In the pre-digital age, a codicil was a shortcut used to avoid having to retype an entire will. Today, attorneys often save the final draft of their clients' wills in a word processing program and can easily make changes. Even without the final draft, a new will can be populated relatively quickly.
What is a Holographic Will?
Definition of HOLOGRAPHIC WILL:
(noun) / a will written entirely in the handwriting of the testator and not executed and attested in accordance with the formalities prescribed by New York Estates Powers & Trusts Law § 3-2.1
In order for a holographic will to be admitted to probate, it must be proven that the will was written entirely in the testator’s handwriting and that the testator, at the time the will was executed, was a member of the armed forces while in actual military or naval service during a war or other armed conflict; a person who serves with or accompanies an armed force engaged in actual military service during such war or armed conflict, or a mariner at sea.
What is a "fiduciary?"
Definition of FIDUCIARY: (noun) / a trustee; an agent who represents a principal and acts in the best interest of the principal “the executor serves as a fiduciary of the estate”
(adj) / involving trust, especially with regard to the relationship between a trustee and a beneficiary “the company has a fiduciary duty to its shareholders”
Plain English translation: a representative of another; one who serves as a fiduciary for another has, not surprisingly, a fiduciary obligation to that other person or entity. A fiduciary obligation requires the agent to act with the utmost loyalty, good faith, care, and confidence. Simply put, the agent must act in the principal’s best interest.
If we’re getting more technical (for you attorneys out there) . . .
The New York Estates, Powers, and Trusts Law (EPTL) defines a fiduciary as a person or entity who:
a) meets the description of a “personal representative”; or
b) who is designated by the creator of a trust or by the court to act as an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of a power during minority.1
A “personal representative” is a person who has received letters to administer the estate of a decedent. The term does not include an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of a power during minority.2
But EPTL § 1-2.7 brings these excluded positions within the definition of a “fiduciary.” Therefore, “fiduciary” is a broader term than “personal representative.”
1 EPTL § 1-2.7
2 EPTL § 1-2.13