New York Probate Lawyer Blog

May 23, 2018

Did You Know That The Surrogate’s Court Has Procedures To Recover A Decedent’s Assets

When a fiduciary is appointed to administer a decedent’s estate, one of the main objectives is to collect and protect a decedent’s assets. Thus, Administrators and Executors typically search through the decedent’s papers and records to learn about the decedent’s financial estate.

In most cases it is rather straight forward to find bank account statements, brokerage accounts and real estate titles. However, as New York City estate lawyers know, there are many instances when determining and collecting a decedent’s valuable assets can be very difficult. Continue reading

May 16, 2018

Facts Concerning An Estate’s Interest In Property

by Jules M. Haas

When a person dies it is common to refer to matters dealing with the decedent as issues concerning his “estate”. However, it is important to learn exactly what is meant by a person’s estate”. Upon death, an individual typically owns various assets. These may include real estate, bank accounts, brokerage accounts, individual retirement accounts, life insurance and pension benefits. All of these items comprise a decedent’s “gross estate”. However, a distinction needs to be drawn between the “gross estate” and a decedent’s estate for purposes of administration.

The assets owned by someone who dies that are held in his own name are going to be controlled by a person’s Last Will. If there is no Last Will, these items will be distributed according to the laws of intestacy. In these cases, the Surrogate’s Court appoints either an Executor or an Administrator. Assets that are held jointly or with a named beneficiary may be part of a decedent’s gross estate but are not part of the administration estate. The New York Probate Lawyer Blog has published many articles talking about the way various assets are transferred upon an individual’s death.

It is important to know that an Executor or Administrator is the only person authorized to deal with the affairs of the administration estate. The estate fiduciary has the power to collect assets, pay estate taxes and bills, sell estate property such as real estate and engage in estate litigation to resolve estate disputes. The estate beneficiaries do not have this authority unless they are the Court appointed fiduciary.

May 9, 2018

Learn About Problems That Arise When A Last Will Is Not Properly Executed

by Jules M. Haas

The preparation and execution of a Last Will in New York requires careful attention to detail. When a Will is being formulated a New York Estate lawyer typically obtains information from a testator regarding assets and intentions concerning beneficiaries.

Since the purpose of estate planning is to insure that a person’s assets are disposed of properly, it stands to reason that a significant amount of time and effort be devoted to examining these issues. For example, the New York Probate Lawyer Blog has published numerous articles that point out that a Last Will typically only controls assets that are held by a decedent in his name alone. Assets that pass by operation of law, such as jointly owned assets or those that have designated beneficiaries such as life insurance or retirement accounts, are not controlled by Will provisions. Therefore, it is important for a testator and for an estate lawyer to understand the nature of the asset ownership so that the plan and the Will dispose of the estate according to a testator’s wishes. Continue reading

May 2, 2018

Useful Information Regarding Proof of Kinship In New York

by Jules M. Haas

The settlement of an estate in New York invariably involves the kinship of a decedent. Whether the proceeding concerns the probate of a Last Will or an intestate administration, the Court requires full and specific information regarding the decedent’s next of kin (known as “distributees”).

In a probate case, the decedent’s distributees must be identified and given notice of the probate proceeding because these individuals have a right to contest the Will. Where a person dies intestate (without a Will) the statutes provide that the individuals who are entitled to serve as the estate Administrator and also inherit the estate are the decedent’s distributees. Continue reading

April 25, 2018

What You Should Know When Naming New York Estate Beneficiaries

by Jules M. Haas

Creating an estate plan in New York involves preparing a number of different documents. These papers may include a Last Will or Living Trust. There may also be other documents associated with a person’s assets such as bank accounts, life insurance policies and retirement funds like Individual Retirement Accounts and 401K plans.

In all instances, it is very important to take care to properly name the beneficiaries on the documents. In this regard there are various rules and requirements and procedures that need to be adhered to so that the beneficiary is properly designated. For example, in a Last Will, when a person is named as a beneficiary of a bequest, the person’s name should be clear and correct. Also, it is a good practice to provide for an alternate beneficiary in the event the primary beneficiary predeceases the testator. Continue reading

April 18, 2018

Did You Know That Settlements In The New York Surrogate’s Courts Are Usually Binding On The Parties

by Jules M. Haas

Estate litigation in the Surrogate’s Court is common. There are many different types of proceedings where parties engage in conflict. Probably the most well-known area of litigation in an estate is a Will Contest. When a Will is contested and Objections to probate are filed, there can be many months and sometimes years of Court proceedings regarding the validity of a Will.

Another well-known area of dispute involves Accountings that are filed by an estate fiduciary such as an Executor or Administrator. Beneficiaries of estates and trusts often have Objections to the manner in which a fiduciary has collected or handled estate assets. In these cases there are usually questions regarding a breach of a fiduciary duty. Continue reading

April 11, 2018

Why A Guardianship Proceeding Can Be Important To Help An Incapacitated Person

by Jules M. Haas

The statutes in New York provide for a Guardianship for a person who is found to be incapacitated. Article 81 of the Mental Hygiene Law is entitled “Proceedings For Appointment of a Guardian For Personal Needs or Property Management”.

In a typical case a Guardianship is sought to be established by someone who is concerned with the welfare of an alleged incapacitated person. There are numerous situations that arise that can prompt a Guardianship application. The more common problems involve cases where the incapacitated person cannot make decisions regarding assets or handle property matters. As a result, various bills are not being paid such as utility bills, medical expenses, a mortgage or rent or other necessary items. Due to the person’s inability to deal with these matters he is at risk and may suffer harm if these expenses remain unpaid. Continue reading

April 4, 2018

Why A Spousal Right of Election May Be Needed To Receive a NYCERS Death Benefit

by Jules M. Haas

There are numerous protections afforded to a surviving spouse in the New York Estate Laws. When a person dies without a Last Will, the Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides that a surviving spouse is entitled to receive the sum of $50,000.00, plus one-half of the decedent’s administration estate. Additionally, it is important to know that a spouse cannot be disinherited. Even if a decedent leaves a Last Will, a spouse can file an election so as to receive at least one-third of an estate. This Right of Election applies to situations where the decedent dies with or without a Will. The New York Probate Lawyer Blog has published numerous articles concerning the Right of Election.

In many cases, a decedent may leave property to designated beneficiaries outside of the estate property. These assets may include joint bank accounts, joint real estate or retirement benefits. There are instances where the decedent had been employed by the government and there are significant death benefits. Even where these benefits are made payable to children or other third parties, the spouse through a Right of Election may be entitled to receive one-third of these benefits. One common source of benefits is from NYCERS which is the New York City Employees’ Retirement System. I have represented many individuals in connection with using a Spousal Right of Election to obtain a spousal share of these funds. Continue reading

March 28, 2018

Choosing a New York Executor Is An Important Part of Estate Planning

by Jules M. Haas

Creating a Last Will involves a number of considerations. A person should take an inventory of his assets including the value of each and the type of ownership. It is important to know if the asset is owned in the person’s individual name, or is a joint asset or payable on death to a designated beneficiary.

Also, decisions need to be made concerning the identity of the beneficiaries to be named in the Will, as well as the amount of the bequest each is to receive. An Estate Lawyer in New York City can be helpful with creating a plan and understanding the nature and effect of asset ownership and Will provisions. Continue reading

March 21, 2018

Useful Information About Accounting In New York Estates

by Jules M. Haas

An estate fiduciary can be an Executor, Administrator or Trustee. All fiduciaries have various duties and responsibilities. When a fiduciary fails to fulfill one of these obligations he may be found to have breached his fiduciary duty.

One of the most important duties of a fiduciary is to provide beneficiaries with an accounting of his financial activities. The New York Probate Lawyer Blog has discussed accounting proceedings in many earlier posts. In an accounting, there will be numerous schedules detailing the transactions that were engaged in. For instance, in Schedule A there will be a list of assets that were collected. Another Schedule provides details regarding income received during the time period of the account. Yet another Schedule will provide the items of expenses and payments that were made. Continue reading