Articles Posted in Estate Settlement

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

Did you know that administering a New York estate can be a very complex matter. Estates can vary in nature. There can be an Administration Estate when a person dies intestate (without a Last Will). There can be a Probate Estate when a person dies with a Will that is admitted to probate in the Surrogate’s Court. In a probate case the Court appoints an Executor. In an Administration case the Court appoints an Administrator.

The New York Probate Lawyer Blog has discussed many issues concerning estate settlement. Each estate can face unique problems that the estate fiduciary needs to anticipate and address. In some matters the decedent may have incurred a lot of debt or other monetary obligations that must be paid out of estate funds. In other situations the estate may be responsible to pay for various taxes related to the decedent. These taxes can be State or Federal income taxes that are due to income prior to the decedent’s death. There may also be income taxes incurred by the estate. Estate taxes may need to be provided for. Both New York State and the Federal government impose estate taxes. In all these matters, the estate fiduciary must be very cautious and make certain that estate liabilities are paid. The fiduciary can be personally liable if these obligations are not properly addressed. Continue reading

A decedent’s estate in New York is comprised of different assets. In many estates the most valuable asset is real estate. The real estate assets can be in the nature of the decedent’s residential property or commercial or business property. It is also common for someone to have owned a condominium apartment or a unit in a cooperative corporation.

Controversies and estate litigation often arises concerning these real estate interests. One common problem that is faced by estate executors or administrators is when the real estate needs to be sold and a third-party or even an estate beneficiary refuses to vacate the property to allow it to be sold. In these cases eviction proceedings in the landlord-tenant Court may be needed. Eviction proceedings can also be commenced in the Surrogate’s Court. The New York Probate Lawyer Blog has discussed these matters in earlier articles. I have been involved in many cases where an estate fiduciary needed to evict beneficiaries from estate houses. Continue reading

The New York probate process is designed so that an Executor can be appointed to handle estate affairs. Until an estate Executor is granted letters testamentary by the Surrogate’s Court, no one has the legal authority to act on behalf of the decedent’s estate. Sometimes, preliminary letters testamentary can be obtained.

Obtaining a duly authorized fiduciary is important since such person can collect bank accounts, pay estate expenses and engage in other transactions to facilitate estate settlement.  Sometimes, the terms of a Will provide that a share of the estate is to be paid to a Trustee. This type of trust is called a testamentary trust. The terms of the trust are set forth in the Will provisions. In order for the transfer of assets from the estate to the trust to occur, a trustee must be appointed to handle the trust administration. Continue reading

An Estate fiduciary such as an Executor or Administrator is responsible for settling a decedent’s estate.    A New York City estate lawyer often refers to Estates Powers and Trusts Law (EPTL) Section 11-1.1 which is entitled “Fiduciaries’ powers”.  Among the authority provided by the statute is the power to settle claims against a decedent’s estate.  The payment of estate creditors is a primary obligation of the fiduciary which must be completed before any distributions can be made to beneficiaries.   If a fiduciary distributes estate assets to beneficiaries before satisfying creditor’s claims, the administrator or executor may be held personally liable to satisfy those debts if the estate does not have sufficient assets remaining on hand to do so.

It is very common for a person to die with unpaid debts or creditor claims. The most common types of unpaid items include credit card balances and mortgages. In a recent article posted at MarketWatch.com by Christine DiGangi dated May 29, 2017 entitled “What happens to your debt when your die?”, it was reported that 73% of decedents had some type of debt at death. Continue reading

There are many different aspects to estate administration that requires consideration. The New York Probate Lawyer Blog has pointed out in earlier posts that the estate laws provide certain protections for a decedent’s spouse.

Estates, Powers and Trusts Law (EPTL) Section 5-1.1-A entitled “Right of election by surviving spouse”, contains provisions which require that a surviving spouse receive a share of a decedent’s estate. This share is referred to as the elective share. The statute provides that the elective share is equal to the greater of $50,000.00 or one-third of the decedent’s net estate. Continue reading

Surrogate’s Courts in New York are known for handling proceedings concerning the estates of a decedent. New York City Probate Lawyers assist their clients with filing cases for the probate of a Last Will. Estate Attorneys also help when there is no Will and a decedent dies intestate. In these matters a proceeding is filed to obtain Letters of Administration.

While probate and administration matters are commonly recognized to be reviewed by the Surrogates, there are many different types of issues and controversies that the Court decides. The general rule is that the Surrogate’s Court has jurisdiction over all matters that can effect a decedent’s estate. The variety of cases is endless. For example, I have represented clients in cases where the Court has been asked to evict occupants of a decedent’s residence. This typically occurs when a family member refuses to vacate the decedent’s property so that the executor or administrator can sell it on behalf of the estate. The Court can direct the occupant to vacate the property and can issue a warrant to the NYC Marshall or Sheriff to effectuate the eviction. The New York Probate Lawyer Blog has discussed some of these eviction problems in earlier articles. Continue reading

One of the most important papers that are part of all estate cases is a death certificate. While this statement appears obvious, the presentation of the certificate to the Court and the information contained therein can create roadblocks and issues that need to be overcome. A New York City estate administration lawyer is familiar with the Court requirement that a death certificate must be presented to the Court when a petition is filed seeking to probate a Last Will or to obtain letters of administration.

One problem presented with the need for the certificate is that sometimes there is a delay in obtaining the certificate.  Typically, in New York City estates, the local funeral home obtains certified copies of the certificates from the New York City Department of Vital Records.  However, this may take some time.   Additional issues may arise if the decedent, who may have been a New York resident or domiciliary, dies out of state.  I have seen many instances where a person dies out of state.  When this occurs, the New York Surrogate’s Court often requires an affidavit explaining the reason for the decedent being out of state and showing that the decedent was a New York domiciliary. Continue reading

When a person dies leaving a Last Will and Testament the Will is typically filed with the Court in the probate process.   An essential provision in a Will is naming the persons to be appointed as Executor.  The Executor is the person who is responsible for estate settlement such as the collection of assets, the payment of estate debts and expenses and distributing the net estate to the Will beneficiaries.

The provisions of a Will should not only name the Executor, the Will should designate a substitute or successor Executor in the event the primary person nominated cannot act as the fiduciary. It is not uncommon that the primary named Executor needs to be replaced. This can result from a number of reasons such as the primary fiduciary is deceased or ill or refuses to accept the appointment. When the first named Executor does not act as the fiduciary, the Court will appoint the named substitute. Continue reading