If you leave a will, upon your death your estate will have to go through a process called probate before your property is transferred to your beneficiaries. Probate is the process where a judge in the Surrogate’s Court determines if your will is valid and oversees the settling of your estate and distribution of your assets. The executor whom you named in your will has the responsibility of completing the tasks involved in probate. Probate can be fairly routine involving the gathering of your property, the paying of your debts and the distribution of assets. Or it can be complicated involving probate litigation and estate tax issues. Either way, probate takes time. At a minimum probate will take several months and can take several years. To learn more about probate and the process of creating a will, contact an experienced Bronx probate lawyer at the Law Offices of Stephen Bilkis & Associates.Selecting your executor
The job of your executor involves a great deal of responsibility regardless of the size of your estate. While many of the responsibilities of your executor may be routine, your executor will have a great deal of discretion in how he or she carries out these responsibilities. In addition, your executor will have to interact with your family members, beneficiaries, heirs and other interested parties. It is important that your executor has the ability to interact with them in such a way that conflict is minimized. Thus, you should take care when selecting your executor. Some issues to consider when naming your executor include:
- Familiar. Your executor should be someone who not only knows you well, but someone who also knows your family well and is on fairly good terms with them.
- Fair. The person you pick for your executor should be fair. During the probate process, concerns and conflicts may arise regarding the settling of the estate. Your executor must be able to address these issues keeping in mind the terms of your will, the best interests of the estate, and all of the beneficiaries.
- Trustworthy. Your executor will have a fiduciary relationship with your estate and your beneficiaries. This means that your executor must fulfill his (or her) responsibilities as an executor with the utmost care, and in an unselfish manner.
- Practical. The executor of your last will and testament will need to use common sense and make practical decisions while managing your estate until it is transferred to your beneficiaries.
- Organized. Because of the many tasks which need to get done and the many details involved, your executor will need to be organized. For example, the executor will have to keep track of your estate's bills, balance its checkbook, locate and inventory your assets, resolve claims against the estate, and respond to issues that may arise with your beneficiaries. While doing all of these things your executor will have to tend to his or her own personal affairs. Thus, the person you name as your executor must be able to successfully manage each of these responsibilities.
A spouse is most often selected as an executor, followed by adult children and siblings, as they are often relatives who are closest to the testator and, therefore, the most trusted. Some forgo selecting a family member and opt for a disinterested executor such as corporate executor. This is because in some cases if the executor is also a beneficiary, there may be distrust among other beneficiaries and family members regarding the management of the estate, possibly resulting in probate litigation. Also, a relative who is close to you may not be able to effectively discharge the duties of an executor because of the extreme emotional distress your death has caused.
If you have substantial assets or your estate is complex an executor who is an attorney or accountant may be a good idea as such an executor may be more equipped to manage a complicated estate. It is also a good idea to name a successor executor in the event that the primary executor is unable to serve.Probate process
In order for a will to go through probate your estate must first be opened. This means that your will must be located and a petition must be filed with New York Surrogate's Court in the county in which you lived at the time of your death and file a petition for probate. The petition must include a copy of your will and any amendments, a certified copy of your death certificate, and the filing fee. On the petition you will have to include the names and addresses of the beneficiaries, heirs as well as the approximate value of the estate.
A New York Surrogate's Court judge will review the will to determine if it valid. To be valid New York wills must be signed by the testator in the presences of 2 witnesses. If the judge concludes that the will is valid, he (or she) will admit it to probate and issue the person you named as executor in your will letters testamentary. In doing so, the executor is given the legal authority to begin managing your estate and ultimately distributing your assets to your beneficiaries. However, if an heir or other interested party feels that your will is not valid, that person can initiate a will contest and delay probate.
Managing the estate involves a number of steps:
Locating assets. Your executor must find your assets. This may be as simple as your executor going to your home and inventorying its contents. It may also mean finding bank and investment accounts. You executor's job may become somewhat sticky if your executor must retrieve assets that have been loaned to family and friends. In fact, a dispute may arise as to whether or not you gave the asset away or if you loaned it. If you have property in another state, the executor's job becomes more complicated as it may be subject to probate in that state.
Not all of your assets are subject to your will and probate. Assets such as proceeds of life insurance policies, retirement plans such as pension plans, 401(k) plans and IRAs, property that you own jointly with others with survivorship rights, and property that you placed in a trust while you were still living will pass to the beneficiaries outside of your will. To learn more about which property is not subject to probate, contact an experienced Bronx probate lawyer.
Appraising assets. Before your executor will be able to pay your debts and distribute your assets, your executor will have to figure out the exact value of your estate. The values of a vehicle, bank account or investment account are fairly straightforward to determine. However, other items such as jewelry and collectibles or a small business may require that the executor hire someone to give an appraisal. If your estate does not have enough assets to pay your estate's debts, then not only will some creditors not be paid, some of your beneficiaries may not receive anything.
Paying creditors and final bills. Your executor will then pay your estate's debts. Your executor must notify known creditors of your death as well as publish a notice so that anyone who has a claim against your estate will be put on notice. Creditors and claimants have 7 months after the date given in the published notice to file claims against the estate. There may be claims that are filed against the estate that your executor determines are not valid. If your executor refuses to pay a claim, the claimant may initiate litigation against the estate in an effort to get paid.
In addition to any bills that you incurred before your death, estate debts also will include funeral expenses and expenses related to managing your estate. For example, if the executor needed to hire an appraiser, attorney, or accountant, their fees would be paid by the executor from estate assets.
Filing and paying taxes. Your executor must file your final tax returns and pay any income taxes owed. He (or she) must also file estate income tax returns, if required. If you are audited, your executor is responsible for resolving the audit.
Distributing assets. The transfer of assets to beneficiaries is usually not very difficult. For cash gifts the executor will simply write a check to the beneficiary from the estate's bank account. For tangible personal property such as jewelry, clothing or household furnishings, your executor will simply turn it over to the appropriate beneficiary. If the property is real estate, the executor must make sure that the title to the property is properly transferred to the appropriate beneficiary.
The job of a New York Surrogate's Court judge, known as a surrogate, is to oversee the entire process of winding up a decedent's estate. This involves adjudicating the validity of a will, preventing malfeasance by executors, enforcing the provisions of a will, and ensuring the proper distribution of the assets. Typically this requires little action on the part of the Surrogate other than signing off on certain requests such as to sell estate assets and to close the estate. If there is no will contest or other estate litigation, then the Surrogate will have little other direct involvement in the probate process. If there is any sort of dispute involving the estate the Surrogate will have a significant role. The Surrogate will have to resolve challenges to the validity of the will, disputes regarding how the executor and other fiduciaries are managing the estate, and contested claims against the estate.Timeframe for probate
One problem with probate is that it can take a long time. In New York it generally takes at least 9 months, and can take 1 or more years. The first 9 months of the process includes the time it takes for the court to issue the letters testamentary to the executor and the time required to wait for claimants to come forward. As an experienced Bronx probate lawyer will explain, if there is a will contest or any type of estate litigation probate will take even longer.
Another cause for delay in probate is if your estate requires the filing for an estate tax return. New York law requires that large estates with assets worth over $1,000,000 file estate tax returns. If this is the case, your estate will not be closed until you receive notification from the taxing authorities. This can add up to 3 years to the probate timeframe.Consequences if you do not have a will
If you do not have a will your estate will still have to go through an administration process. Instead of an executor, the Surrogate's Court will appoint an estate administrator. The estate administrator will have to do the same activities as an executor to wind up your affairs. However, as a skilled probate attorney in the Bronx will explain, instead of distributing you assets to your named beneficiaries, the administrator would distribute your assets to your heirs according to New York's rules of intestate succession.Contact the Law Offices of Stephen Bilkis & Associates
Probate and the administration process can be complicated. There are many challenges that may develop throughout the process that may result delays. This means that there may be a delay in the beneficiaries receiving their distributions. This may lead to hardships. To avoid minimize the impact that probate will have on your estate, it is important that you contact a skilled probate attorneys serving the Bronx. The staff at the Law Offices of Stephen Bilkis & Associates has extensive experience representing clients in complex probate matters. We can help. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Bronx, Staten Island, Queens, Brooklyn, Long Island, Manhattan, Suffolk County, and Westchester County.