Articles Posted in Estate Settlement

As a Trusts and Estates lawyer in New York, I receive many inquiries from individuals who are concerned about recovering and protecting their estate inheritances.  The administration aspect of an estate generally can be in one of two forms.  There is a probate estate where a decedent dies leaving a Last Will and Testament.  When there is no Will, the estate is the subject of an intestate administration.  The New York Probate Lawyer Blog has published many articles discussing probate and intestacy matters.

When a person believes that a decedent named him as a beneficiary on an account such as a pay on death account or as a designated beneficiary of an asset such as life insurance, the beneficiary should contact the financial institution directly to obtain all details.  Typically, the beneficiary needs to present a death certificate and complete an appropriate death benefit application or withdrawal form.  These papers can be obtained and submitted directly to the bank, insurance company or other institution to claim the inheritance.  There is no need to contact the estate executor or administrator since these types of assets pass outside of the probate or intestate estate.

In some instances, there may be disputes as to whether a proper beneficiary designation form was prepared or filed by a decedent.  These matters may need to be resolved through estate litigation.

All of a sudden you are asked to be the Executor or Administrator of an estate.  Most people have never acted in such a capacity and do not have any experience as to the responsibilities and tasks that lie ahead.  They may be reluctant or even afraid to accept the appointment.  While taking on this role may appear to be daunting, moving forward one step at a time with proper information is the best way to proceed.  Here are a few initial suggestions.

1. Do Some Research And Seek Professional Guidance. It never hurts to research the internet or other sources to learn about the role of an Administrator or Executor.  An Administrator is appointed when a person dies intestate without a Will.  An Executor is someone who is nominated in a Last Will and Testament. The appointment becomes official after the Will is admitted to probate. Other family members and friends may have been appointed in past matters and they can provide some insight.  Internet sources such as The New York Probate Lawyer Blog contain many articles explaining estate issues.  Also, Estate Lawyers can provide invaluable guidance and insight into the Surrogate’s Court process and how a fiduciary is appointed and estate settlement takes place.  I speak with many people each week regarding and discussing these issues.
2. Understand The Need for An Estate Fiduciary. The fiduciary is basically the Chief Officer for an estate.  He or she collects the estate assets, pays the bills, taxes and expenses and ultimately distributes the assets to the estate beneficiaries in accordance with the estate laws and documents.  There are numerous fiduciary duties and obligations.  If the decedent owned real estate such as a residence, the fiduciary may need to sell the house and pay off a mortgage.  Bank accounts owned by the decedent need to be closed and an estate bank account must be created. The decedent’s affairs cannot be resolved without proper administration.  I handle all of these matters with my clients.

The probate process in New York requires that statutory and procedural guidelines be complied with. The statutory framework is contained in the Surrogate’s Court Procedure Act and the Estates, Powers and Trusts Law. Admitting a Will to probate is, in effect, obtaining Court approval that the document is valid and its terms are enforceable as to the disposition of a decedent’s estate. The New York Probate Lawyer Blog contains many articles regarding this process.

When a Will is offered for probate, a petition is filed with the Surrogate’s Court along with the original Will, a death certificate and other required papers. These may include a kinship affidavit and affidavits from the attesting witnesses. Often the original Will has attached to it a self-proving affidavit that was signed by the Will witnesses at the time of the execution of the Will.

While most probate cases proceed without complications or unnecessary delay, there are many instances where problems arise that can sidetrack or prevent the completion of the Court determination of validity. One major hurdle may be in the form of a Will Contest. A Will may be contested for lack of due execution, lack of testamentary capacity, undue influence or even forgery. Another problem that may be encountered is proof of kinship. The statutes require that notice be given to all of the decedent’s distributees (next of kin). Such notice is usually in the form of a Citation, which is like a summons that requires the recipient to appear in Court and state whether they are going to challenge the Will. Sometimes, it may be difficult to determine the identity or location of a decedent’s next of kin.

When a person dies there is a lot of concern about the actions to be taken regarding the handling of the individual’s estate.  While this article talks about 5 important steps or considerations in truth, depending upon the nature of the estate, there can be many more.

To begin with, there may be uncertainty regarding the manner in which the decedent’s body is to be disposed of and who should be the person in charge of this matter.  If the decedent left instructions or a pre-paid funeral account, this matter may be easily resolved.  Unfortunately, in some cases there are no precise funeral or burial instructions and there may be competing family members or friends who want to control the final rites and burial decisions.  This can lead to litigation if not resolved.

Another consideration is whether or not the decedent left a Last Will and Testament. The New York Probate Lawyer Blog has published many articles concerning this subject.   If the decedent left a Last Will, the original should be located so that it can be filed with the Surrogate’s Court and a Probate Proceeding can be started.  If there is no Will and the decedent died intestate, then an administration proceeding needs to be filed to have Letters of Administration issued to the Estate Administrator.   When a Will is probated, Letters Testamentary are issued to the Executor.

The settlement of a decedent’s estate involves numerous activities.  When a person is appointed as the Administrator or Executor of an estate, one of the most important fiduciary duties is to locate and collect the assets that were owned by the decedent.  In some estates this task can be uncomplicated.  If the decedent owned bank accounts, real estate or funds in  a financial institution which the Executor or Administrator was aware of, the various forms and transfer papers can be prepared to facilitate the liquidation and collection of the assets.

However, there are many estates where the identification and collection of estate assets is not so clear or simple.  There may be many difference issues that can delay or prevent recovery.  To begin with, it may be difficult to locate or identify estate property.  The decedent may have kept poor or confusing records.  Also, some assets may be held in on-line accounts or in the name of corporations or other entities in which the decedent had an interest.

Additionally, even where assets can be located, there may be disputes with third parties regarding ownership.  The New York Probate Lawyer Blog has posted a number of articles regarding the recovery of a decedent’s assets.

New York estate settlement involves many different types of rules and statutes.  When a person dies the first question to be asked is whether the decedent had a Last Will and Testament or whether he died intestate.  Once this fundamental issue is established either a probate petition or a petition for Letters of Administration can be filed with the Surrogate’s Court.

The New York Probate Lawyer Blog has published numerous articles concerning the need to provide the Court with all the names and addresses of a decedent’s next of kin.  It is not uncommon for kinship information to be missing or difficult to obtain.  Sometimes the services of a professional genealogist are needed to track down missing heirs.  Also, the Surrogate’s Court may require that a kinship hearing be held to determine the status of individuals claiming to be a decedent’s distributees

While finding lost heirs is important, there are situations when determining the status of a possible decedent arises.  The problem is showing whether this person is alive but just avoiding contact, or whether, in fact, the person is deceased.  During this period of uncertainty, the missing individual’s affairs and assets are in limbo and not being attended to.

After a person dies it is usually necessary to enter the decedent’s residence for various purposes.  To begin with, it may be that the home needs to be searched to see if the person left a Last Will and Testament.  Gaining access to the home may not be difficult if the decedent lived with a spouse or other family member.  However, if the decedent lived alone or voluntary access cannot be obtained, then an application can be made to the Surrogate’s Court for an Order to search the residence for a Will.

There may also be situations where either before or after a fiduciary is appointed, a residence is searched to locate papers and documents relating to the person’s income, assets, debts, business obligations and ordinary bills such as utilities, mortgage, rent or credit cards.

There are a number of important considerations when a residence is searched and the decedent’s personal effects are first reviewed.  If the individual entering the premises is not a duly appointed estate fiduciary he does not have any authorization to remove or otherwise discard any of the decedent’s property.  Additionally, even if the individual has been appointed as Executor or Administrator or Preliminary Executor, extreme care should be taken to inventory and safeguard the contents.

A decedent may leave many types of estate assets. Some of these items that are held in the decedent’s name alone will be payable to the executor or administrator as part of the administration estate. Other assets such as life insurance or pension proceeds may be payable to designated beneficiaries. The New York Probate Lawyer Blog has many posts regarding estate assets and administration.

It is interesting to know that these designated beneficiary assets may result in complicated issues which involve both the rights of the named payees and other estate interests. In particular, these issues are often present when a decedent has retirement or death benefits with the New York City Employees’ Retirement System commonly referred to as NYCERS. Continue reading