and Your Family
Nassau County Probate
When you pass a way, in the midst of grieving your loved ones will also have to think about unsettled issues related to your estate. The legal process during your estate will be settled and distributed is known as probate. Legally, your estate will have to be disposed of in a certain way. You assets will have to be accounted for and valuated, and the debts of your estate will have to be paid. Finally, you assets will be distributed to your beneficiaries or heirs. Depending on a number of factors, probate can be quite lengthy and complicated. However, there are actions you can take through careful estate planning to help ensure that your wishes are fulfilled and that probate is as quick and painless as possible. To help make sure that your estate is probated in the most efficient manner during such an emotionally challenging time, it is a good idea to contact a Nassau County Probate Lawyer who will be able educate you on the probate process and help you design a estate plan that fulfills your wishes.The Probate Process
Probate is the legal process through which the executor of your estate winds up your affairs and distributes the assets of your estate according to the provisions of your will. If you do not leave a will, then your assets will be distributed through a process called estate administration.
If you left a will and named an executor, your executor will be the person who will initiate the probate process by petitioning the New York Surrogate's Court in the county in which you lived at the time of your death. The petition will include a copy of your will and a copy of your death certificate. The Surrogate's Court judge will review the will to confirm that it was executed with the formalities required by New York law. NY EPTL § 3-2.1. For example, New York law requires that you as the testator sign the will at the end, or authorize another person to sign for you if you are unable. In addition, the signing of the will must be witnessed by 2 people. Once the Surrogate's Court judge is satisfied that your will was properly executed, the judge will issue an order admitting it to probate. At that point, your executor will have legal authority to handle the affairs of your estate, including distributing its assets to your beneficiaries.
The process for a will being admitted to probate is not always smooth. When a petition is filed to admit a will to probate, the Surrogate's Court notifies interested parties. This allows interested parties to object to probate and possibly initiate a will contest. There are several bases for a will contest. A family member may feel that the deceased was unduly influenced or forced by another beneficiary into signing the will. Or someone may feel that the testator was mentally incapacitated at the time he or she signed the will. A will contest may also be based on allegations that the formalities of execution did not occur.Placing a Value on Your Estate
In probating the will, one of the first duties of your executor will be to determine the value of your estate. In order to do this your executor will have to inventory your estate and appraise each asset. This step is important as the executor must make sure that all of the property in your estate is accounted for
This step is also important as the executor must figure out the value of the property that is available in your estate to pay your creditors and distribute to your beneficiaries. If the value of your estate is not sufficient, then your beneficiaries may not receive the amount of property that you intend them to receive.Paying Estate Bills
Before distributing your assets to your beneficiaries, your executor must use estate assets to pay outstanding debts and claims against the estate. For example, taxes must be paid as well as funeral expenses, and expenses related to managing the estate. There may be claims against the estate that require the executor to hire an accountant or attorney in order to settle the dispute. These professionals will be paid from estate assets.
At any point during probate the estate may be subject to claims by beneficiaries objecting to how the executor his managing the estate. For example, a beneficiary may believe that the executor is wasting or mishandling the assets of the estate. As a result, the estate may end up in estate litigation to resolve the allegations.Distributing Assets to the Beneficiaries
The final responsibility for your executor will be to distribute the assets of your estate to your beneficiaries. Your will will state the names of your beneficiaries and what asset each is to receive. If you specify that a beneficiary is to receive a pecuniary gift, meaning a gift of cash, your executor will simply write a check to the beneficiary.Consequences if You Do Not have a Will
If you do not to have a will when you die, New York will essentially write a will for you. This is not the preferred estate planning option. Under New York law, if you pass away without having a will, then you die "intestate." A court will then look to New York's intestacy rules to identify your legal heirs and to determine to what portion of your estate each heir is entitled. NY EPTL § 4-1.1. In leaving the fate of your estate up to intestate succession rules, you give up your right to select beneficiaries, name the executor of your estate, and designate a guardian for your minor children.
If you do not have a will, the individual that is appointed to manage your estate is referred to as an administrator. Oftentimes this person is your spouse or your child. However, the court could also appoint a complete stranger.
New York intestacy laws identify only spouses and select blood relatives as possible heirs. If, for example, you are survived by your spouse, but have no children, your spouse will receive your entire estate. If you are survived by both your spouse and your children, then your spouse will receive the first $50,000 of your estate and the balance will be divided between your spouse and your children, with your spouse receiving 50% and the children sharing the other 50%. Your children will share in 100% of your estate if you do not have a surviving spouse. There are also provisions for when parents, grandparents and other blood relatives will share in an estate. NY EPTL § 4-1.1.
Under the probate laws regarding intestacy, friends, organizations, and even certain blood relatives will not be able to inherit. Furthermore, blood relatives who you do not wish to share in your estate might receive a share if you die intestate. The best way for your wishes to be fulfilled is for you to have a will.
If you have minor children and the other parent is not available to take care for them, then someone must serve as a guardian for them if you die. While family members will likely provide input as to whom is named the legal guardian, the ultimate decision will be up to the court. Thus, it is possible for your children to become wards of the state and end up in foster care. This is a result that you do not want. If you have a will you can name exactly who you want to become your children's guardian. You can also name an alternate person in case your primary choice becomes unable to serve as guardian.
The attorneys at Stephen Bilkis and Associates are experienced in representing estates in New York Surrogate's Court. We will help you make the process as simple and painless as possible under the circumstances. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.