Law Office of Jason D Jones, P.C.
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Probate & Estate Administration

Probate & Estate Administration 

When someone dies with a validly executed Will, his or her estate must be probated.  In a probate proceeding, the Surrogate rules that the proposed Will is legally valid and appoints an Executor to collect and distribute the proceeds of the decedent’s estate pursuant to the Will terms. When someone dies without a Will, or intestate, or in certain cases where the Surrogate denies probate, an administration proceeding must be commenced.  In an administration proceeding, a Surrogate approximates how an average decedent would have distributed his or her estate.  The Surrogate then appoints an administrator to collect and distribute the decedent’s estate. Whether you are facing a probate or administration proceeding, I will guide you through the complex process. New York requires solemn probate: all interested persons must waive or consent and all legatees or devisees must be provided notice prior to the filing of a probate or administration petition.  I will vigorously represent your interests as an estate representative before all Surrogate's Courts within the NYC metro area and Nassau, Suffolk and Westchester counties.

Probate

How long does a Probate proceeding take and how much does it cost?

  • The length of the probate proceeding depends on many factors, such as the size of the estate and number of beneficiaries and charities involved. I am very experienced in providing what each Surrogate court requires for a complete petition so that the proceeding can be expedited.

What are examples of non-probate assets?

  • Non-probate assets include but are not limited to joint interests in real property (land), life insurance, retirement accounts, and financial institution accounts where beneficiaries are designated on the forms themselves.

Who may probate a Will?

  • A Will may be probated by a legatee, a devisee, a fiduciary or a guardian. A creditor of the estate or any other person with a pecuniary interest in the Estate may also petition for probate. The Executor must file an oath and, in some cases, post a bond. Once an Executor is appointed, such appointment may not be changed until he or she is formally discharged by the Surrogate.

My family member passed away. I know he executed a valid Will but I can only locate a copy.  What should I do?

  • If you can not find the original Will, then the Will proponent must prove that it was duly executed, prove all provisions of the Will distinctly and clearly, and prove that it was not revoked by ripping, burning or otherwise destroying it.

How can I track down witnesses to a Will?

  • If a self-proving affidavit is attached to the Will then you do not need to track down witnesses. The self-proving Affidavit memorializes that the witnesses to a Will have sworn under oath that they have signed and witnessed the Will and their signatures on the Affidavit are notarized.

What is the homestead exemption?

  • The homestead exemption relates to personal property that is considered exempt from probate and a surviving spouse's right of election. Such items include, but are not limited to, cash up to the amount of $25,000, household items up to $22,500 and a motor vehicle up to $25,000. Apart from the motor vehicle, those items not owned at the date of death of the decedent are not included.

Who must waive or be cited during the probate of a Will?

  • Distributees (those who are entitled to receive through the laws of intestacy), the primary executor, a beneficiary, executor, trustee, a guardian caring for one whose interests might be adversely affected, alleged decedents, the Commissioner of Department of Taxation and Finance if the decedent was not domiciled in New York, the Attorney General if there are no distributees or if a charity is involved, a beneficiary who would be adversely affected by a trust power of appointment,or a person who would have had a right or an interest all must either waive process or be cited.

What are the duties as an Executor of a Will?

  • The Executor “steps into the shoes” and fulfills the wishes contemplated by the Testator in the probated Will. Such duties include accepting and acquiring property, investing and reinvesting assets, keeping estate property insured, gathering property, collecting rents, making estate repairs, renewing or foreclosing mortgages and working with banks to collect securities until the estate is fully distributed. The Executor must pay all legal debts prior to distributing assets or he or she might be exposed to personal liability.

Which claims must an Executor pay first, provided that the amount left in the estate is insufficient to pay all claims?

  • The Executor must first pay administrative expenses and funeral expenses, in that order, and then wait seven months to collect and where appropriate, pay out creditor claims before he or she may distribute the estate. Funeral expenses must be reasonable and a surviving spouse must pay for funeral expenses in advance but may be reimbursed when the estate is distributed.

I was named Executor of a Will but do not wish to serve.  Must I do so?

  • One is not required to serve as an Executor under a Will but the Surrogate's Court may request a formal renunciation. If you have accepted your appointment as Executor, however, you must explain to the Surrogate’s Court why you now wish to renounce. Commonly accepted reasons are that the Executor is ill, too old, or is under another impediment that would make it impracticable for him or her to serve as Executor.

I'm in possession of a valid Will where no Executor has been appointed or the Executor has been appointed but has died or ceased to serve.  What can I do in this case?

  • Present the original Will to the Surrogate's Court under a Administration CTA proceeding. The Surrogate will issue Letters of Administration CTA (with the Will annexed) and will appoint an Administrator who will execute the terms of the Will as an Executor would. The Surrogate will select the Administrator CTA in the following order: the sole beneficiary listed in the Will, one or more residuary beneficiaries, one or more interested persons.

The Executor named in a Will contains a non-US person.  May that person serve as an Executor?

  • Under most circumstances, New York law requires an Executor to be either a US citizen or a non-US citizen living in New York. A Surrogate will not appoint an Executor who is not a US citizen and lives outside of New York unless a co-Executor who is a resident of New York is appointed to serve alongside the non-US citizen and these determinations are made on a case by case basis.

Who is ineligible to serve as an Executor of a Will?

  • In New York, convicted felons, infants or incapacitated persons, and those who are appointed yet are found to be unqualified because of "substance abuse, improvidence, a want of understanding" or who are otherwise deemed as unfit may not serve as Executors.

How do preliminary letters testamentary differ from letters testamentary?

  • Preliminary letters testamentary are issued by the Surrogate when there is a delay in obtaining letters testamentary. A delay might occur due to a Will contest or if there are distributees who can not be contacted. Preliminary letters allow the appointee to collect assets, pay estate and income taxes, pay estate debts and to sell real property that has not been specifically gifted to a beneficiary. Preliminary letters, however, do not permit an executor to distribute assets or to pay out dispositions or wind up the estate.

For how long are letters testamentary or administration valid?

  • Letters testamentary or administration are valid from a period of six months from the issuance date, whereupon they must be renewed.

What are limited letters testamentary?

  • Limited letters testamentary are usually obtained for a specific purpose only such as filing a wrongful death suit.

What is ancillary probate?

  • Ancillary probate deals with out of state property owned by a decedent and how it is managed and liquidated. Each state has its own probate process for real property. It is appropriate for use when an out of state person leaves real or personal property that needs to be probated in the state where it is located. The actual probate proceeding must be commenced if not completed prior to moving forward with the ancillary probate proceeding. Placing real estate into a trust can avoid ancillary probate proceeding.

I have a Will probated elsewhere but wish to have it probated in New York.  May I do so?

  • Normally one proceeds with an ancillary probate proceeding but the Will may be probated in New York if the Surrogate determines that ancillary probate would be impossible, unduly expensive or inconvenient.

I am unable to track down both attesting witnesses to a Will.  What are my options?

  • The Surrogate's Court may allow the Will proponent to proceed with one of the two attesting witnesses if, after reasonable due diligence, one of them is either deceased, absent from the state or found to be incompetent. If both of the attesting Witnesses are unavailable, then the Court may admit a Will if it receives proof of the handwriting of the Will maker and of one of the attesting Witnesses.

Administration

What is an Administration Proceeding?

  • An administration proceeding is used by the Surrogate's Court when the decedent died intestate or partially intestate. These proceedings approximate how a reasonable person would have bequeathed or devised property to family or loved ones.

What is partial intestacy?

  • Partial intestacy results when someone dies leaving a valid Will but only disposes of a part of the estate. Examples include an invalid gift in a Will or if the Will terms do not cover all of the property owned by the decedent at the date of death.

Which persons may inherit under an Administration Proceeding in New York?

  • Distributees may inherit under an Administration Proceeding in New York. Who gets what is determined by who the living relatives are and their relationship to the decedent. If there is a spouse but no children then the spouse inherits everything. If there are children but no spouse then the children inherit everything. If there are spouse and children, then the spouse inherits the first $50,000 plus one half of the balance, with the children sharing equally in what remains. If there are only parents then the decedent's parents will inherit everything. If there are only siblings then they will inherit everything. If there no one is available to claim the decedent's property, then it will be held by a Public Administrator for a certain period of time before the property escheats or is surrendered to the coffers of New York state.

Who may petition the Surrogate's Court for an Administration Proceeding?

  • An Administration proceeding only decides who can administer an estate so anyone with an pecuniary interest in the decedent’s estate may petition.

What are some common reasons for commencing an Administration Proceeding?

  • Common reasons include when there is stock to be transferred, debts to be paid, deeds to be executed, or distributions to be made from an estate.

Do Administrators usually need to file a bond?

  • Administrators, in contrast to most Executors, need to post a bond prior to receiving the proceeds of a sale, such as the sale of real estate. The amount of the bond in New York is usually fixed by the value of the personal property in the estate and if there is real property, eighteen months of gross rents.

What is an Administration DBN proceeding?

  • An administration DBN proceeding allows an administrator to wind up the estate of a former administrator who did not complete the administration of the decedent's estate due to his death, resignation or removal.

 Please reach out to me via email or phone below if you have a question or comment that I have not addressed above.