Probate & Estate Administration

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.

Caution

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:

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.