Losing a loved one is never easy. By partnering with an experienced probate lawyer, you can avoid additional acrimony that could potentially accompany that loss.
When a family member dies, it is natural to wonder how to distribute their assets after you have time to mourn their passing. Unfortunately, matters like that can turn messy.
No one wants to be cheated out of what they believe to be their fair share of an estate. Legal battles may ensue to make sure that people receive the assets fairly. You need to prepare for those by hiring a probate attorney.
We will discuss the different ways a probate lawyer can help you out. Stay tuned so you can better understand when you might need their legal expertise.
What Are the Primary Duties of a Probate Lawyer?
When someone passes away, they often leave behind various possessions and assets. You must distribute those assets properly, and that is what the probate process is for.
The probate process has two essential functions.
First off, the process focuses on establishing the legitimacy of a last will and testament. The court will examine the will and see if the individual wrote it under duress.
If the will is valid, the probate process will help with its execution. The court may accept challenges to the will if they deem it to be invalid.
The probate process is also there to help distribute the assets of an estate if there is no will. Courts will abide by state laws when the time comes to distribute those assets.
Given everything it entails, it should be no surprise that the process can be complicated and where the probate attorney comes in. They can provide specialized assistance based on the situation at hand.
Managing an Estate if There Is a Will
Managing an estate is a bit more straightforward if the decedent left a will behind. In all likelihood, the will indicates who should serve as the executor of the estate.
If you are the executor of the estate, your probate lawyer can help you navigate the process better.
As Investopedia points out, executors need to prepare several documents, contact numerous important individuals, and keep track of important financial accounts. You may not have done that because it caught you off guard with the passing of your loved one.
In that scenario, a probate lawyer can help you keep up with the things you need to do.
Managing an Estate if There Is No Will
Not everyone takes the time to write a will. In that case, they determine the individual in question has died intestate.
Like we said earlier, local laws will come into play if they find no will. You may not be familiar with those laws because the passing of your loved one caught you by surprise too.
Probate attorneys ensure that they distribute assets properly if no will is left behind. Your attorney can help you understand what you can receive based on the law.
For instance, New York State law indicates that the living spouse receives everything if they had no children or will. The law also states that the children will inherit everything if the person who died had no spouse or will.
There are numerous other provisions in the law that a probate attorney can explain to you. Their legal expertise will come in handy as you determine how to divide your loved one’s estate.
Additional Services Provided by a Probate Lawyer
The services of a probate attorney are incredibly valuable as you go through that process. However, you must know that their services remain useful beyond that.
Detailed in this section are some of the services a probate attorney can provide. Check them out and see if they will be useful for your situation.
Seek Out the Decedent’s Assets
Are you certain that they already identified your loved one’s assets in the will? Were there assets mentioned in the will that you have not found yet? If you have found yourself pondering either of those questions, then a probate lawyer can offer some valuable assistance.
Your lawyer can help track down, identify, and secure any assets in your loved one’s name. They may even locate real estate properties that should be in the estate. Once secured, they can distribute those assets properly to the designated recipients.
Collect Life Insurance Payouts
While planning your loved one’s funeral and grieving over their loss, you may lose track of certain important matters. For example, your loved one may have had a life insurance policy.
You will need to collect the payouts from that policy but doing so may be difficult given how busy you are. Thankfully, you can entrust that matter to your attorney. Let your attorney collect and handle the payouts for now and figure out what to do with them later.
Resolve Any Tax-Related Issues
Your loved one may have left some overdue taxes behind. Make sure you address those taxes before you go about distributing their assets.
Also, you may need to pay an estate tax on the inheritance you are receiving. Your probate lawyer can help you understand how much you will need to pay.
Settle all those taxes first, so you do not run into any legal troubles down the line.
Pay Off Existing Debts
Debt is usually not something that goes away when someone dies. If your loved one accrued some debt before their passing, you must pay those off by their estate.
Consult with a probate attorney if you are trying to pinpoint the debts you need to pay.
Serve as an Intermediary between the Heirs
Unfortunately, matters related to inheritance can get ugly in a hurry. Everyone is fighting for their fair share, and arguments may ensue as they divide the estate.
Eventually, the parties involved may have a tough time even talking to one another.
You can turn to your probate lawyer for assistance if things get to that point. They can serve as an intermediary between you and the other heirs so you can settle the matter amicably.
Do not underestimate the importance of hiring legal assistance when discussing the division of an estate. By hiring a probate lawyer, you can ensure that you receive what is rightfully yours. Contact us at the Alber Law Group today and let us help resolve the issues related to your loved one’s estate.
Dying Without a Will
In New York, if a person dies without a will (or other testamentary documents) the deceased person is said to have died “intestate.” In such instance, where a deceased person has assets that cannot be transferred by operation of law or trust, that person’s property is distributed according to the New York EPTL 4-1.1 (often referred to as the New York State Intestacy Statute) since there was no written will stating how the assets of the decedent were to be transferred.
This New York “intestacy law” sets forth the manner in which and to whom the deceased person’s assets are to be distributed. Under intestate succession, if you die with a spouse but no children or grandchildren, your spouse inherits everything. If you die with both a spouse and descendants, the spouse inherits the first $50,000 of the intestate property, plus half of the balance, and the descendants inherit everything else. Other family members are eligible to inherit when you do not have a spouse or descendants.
Also, since there is no individual or entity named to administer the deceased’s estate, the New York “intestacy law” provides that a close relative or a person or an entity with and interest in the estate may apply to become the decedent’s “administrator.” The “Administrator” is the fiduciary appointed by the Surrogate’s Court who stands in the shoes of the decedent, marshals the estate’s assets, pays its debts and distributes the balance pursuant to the New York “intestacy law.”
In order to become an “administrator”, it is necessary to file a petition with the surrogate’s court and commence an administration proceeding. This is very similar to a probate proceeding when a decedent passes away with a will. The petition contains a preliminary description of the property comprising the estate and a “ballpark” estimate of its value together with the names and addresses of all of the distributees.
In its simplest form, there are three (3) basic functions to be performed by a fiduciary such as an Administrator. These functions are: (i) collecting or marshaling estate assets, (ii) paying debts, expenses and taxes; and (iii) making a distribution of the net estate to the proper beneficiaries. While these functions may appear rather routine, each can be quite difficult. For example, closing a decedent’s bank account and depositing the funds into an Estate Bank Account may not be complicated.
However, problems may arise where the decedent’s account was improperly closed prior to death by someone who had access to the account with a Power of Attorney. It is the duty of the Administrator to attempt to obtain these funds from the wrongdoer for the benefit of the decedent’s estate. The Surrogate’s Court Procedure Act contains provisions allowing for Turn Over Proceedings that can be use by a fiduciary to obtain assets that rightfully belong to a decedent.
The entire estate goes to the State of New York if there is no one closer to the deceased person than a first cousin. It is important to keep in mind, however, that where a spouse and children survive a decedent, the result is often unsatisfactory for a variety of reason. An older spouse who must give up two thirds of a husband or wife’s estate to adult children may not be left with enough assets to live comfortably.
A younger spouse with minor children may end up sharing real property or considerable liquid assets with young kids who lack the legal ability to own or manage the assets. The best and obvious way to prevent the complications which often accompany intestacy is simple – have a plan in place.
Note: An exception applies when the decedent dies with less than $50,000.00 of assets.
Dying With a Will
In New York, if a person dies with a will and the value of the decedent’s assets is greater than $50,000.00 the decedent’s will is to be filed with the Surrogates Court in the County in which the decedent was a domicile at the time of death together with a formal petition and various affidavits. the procedure by which a person’s Will is given validity by the Court. This process is known as “probate” in New York. The probate New York State process can be complex. A formal petition, the original Will, witness affidavits and proper notice to family members and others are among the papers required in the New York State probate process.
The New York Probate Process is guided by two primary sources of law. One is the Estates, Powers and Trusts Law (“EPTL”) and the other is the Surrogate’s Court Procedure Act (“SCPA”). These statutes, along with various Court decisions and rules, provide the basis for probating a New York Will.
An “executor” is someone named in a will, or appointed by the court, who is given the legal responsibility to take care of a deceased person’s remaining financial obligations. This means taking care of everything from disposing of property to paying bills and taxes.
In its simplest form, there are three (3) basic functions to be performed by a fiduciary such as an Executor. These functions are: (i) collecting or marshaling estate assets, (ii) paying debts, expenses and taxes; and (iii) making a distribution of the net estate to the proper beneficiaries. While these functions may appear rather routine, each can be quite difficult. For example, closing a decedent’s bank account and depositing the funds into an Estate Bank Account may not be complicated. However, problems may arise where the decedent’s account was improperly closed prior to death by someone who had access to the account with a Power of Attorney. It is the duty of the Executor to attempt to obtain these funds from the wrongdoer for the benefit of the decedent’s estate. The Surrogate’s Court Procedure Act contains provisions allowing for Turn Over Proceedings that can be used by a fiduciary to obtain assets that rightfully belong to a decedent..
Top 10 Job Functions of the “Executor” of a Last Will and Testament:
- Notify Banks, Credit Card Companies, And Government Agencies Of The Decedent’s Death
- Decide What Kind Of Probate Is Necessary
- Represent The Estate In Court
- Set Up A Bank Account For Incoming Funds And Pay Any Ongoing Bills
- File An Inventory Of The Estate’s Assets With The Court
- Maintain The Property Until It Can Be Distributed Or Sold
- Pay The Estate’s Debts And Taxes;
- Distribute Assets
- Dispose Of Other Property
It may not always be easy to provide complete information as to a person’s next of kin. In many instances, where the only surviving relatives are cousins or more distant relations, such person’s whereabouts and family connection to the decedent can be hard to find and to prove. Relatives might be scattered throughout many states or countries and they may not have had any contact with the decedent for decades, if at all. These issues are often resolved in Kinship Hearings. These hearings require that the Court be provided with the testimony of disinterested persons and certified records such as birth, death and marriage certificates all of which are needed to demonstrate kinship to the decedent.
The vast majority of Probate cases do not involve Estate Litigation such as Will Contests or persons contesting a Will. However, these types of controversies do arise on occasion and require extensive involvement by New York Probate Lawyers to resolve. In the case of a Will Contest, SCPA Section 1404 provides an aggrieved party the opportunity to examine documents relating to the preparation of the Last Will and to take the testimony of the attorney who drafted the Will and the Attesting Witnesses, even before any formal objections to the Will are filed.
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