and Your Family
New York Estate Probate Lawyer
Probate is the legal proceeding during which a will is validated and the executor is appointed. The New York Surrogate’s Court in the county in which the decedent was domiciled at the time of his death has jurisdiction over probate and administration. Once a will is admitted to probate, the administration process can begin. Estate administration, sometimes referred to as probate administration, is the process during which a decedent’s affairs are settled and his (or her) property is distributed to his beneficiaries according to the terms of the will. If the decedent passed away intestate, meaning without a will, there is a similar process that culminates with asset distribution to the decedent’s next of kin. The process of administration under the jurisdiction of the New York Surrogate’s Court applies only to property that is part of the decedent’s probate estate. All other property in which the decedent had an interest is passed to beneficiaries outside of probate administration based on rules that apply to each type of property. If you have questions about the administration of a loved one’s estate, contact a skilled New York estate probate lawyer at the Law Offices of Stephen Bilkis & Associates. With over 20 years of experience representing clients in probate matters before the New York Surrogate’s Court, we have the knowledge and resources to help.Probate estate
A probate estate is the property owned by the decedent at the time of his death that is subject to probate. Whether or not the decedent had a will, his probate estate is the property that the decedent could have legally distributed through his will. On the other hand, non-probate property is not subject to the probate process.
Property that is part of your probate estate includes:
- Individually owned property. Property that is titled in your name only including personal property such as jewelry, vehicles, appliances, and home furnishings. Real estate is also probate property as long as it is individually owned, or owned by the decedent as a tenant in common. If you are not sure as to how a house, unimproved land, or other real estate is titled, contact an experienced New York estate probate lawyer.
- Tenant in common assets. Your interest in property that you co-own with others as tenants in common. Real estate commonly is owned in this manner. Each tenant in common has the right to leave his (or her) share of the property to a beneficiary of his choosing upon his death. If the owner does not leave a will, his interest in the property will go to his next of kin under the rules of intestate succession.
Non-probate property includes:
- Jointly owned assets. Assets owned with others as joint tenants with right of survivorship is non-probate property. A common example would be real estate such as the family residence. Such real estate is often owned by spouses in joint tenancy, but non-spouses can own property as joint tenants as well. Upon the death of a joint owner, the asset will automatically go to the survivors.
- Assets with designated beneficiary. Any asset that has a designated beneficiary is non-probate probate property. This includes life insurance, 401(k) accounts, IRAs, other retirement accounts, and annuities. For example, Gregory made a will that leaves his entire estate to his cousin, Jeff. The estate is worth $300,000. Gregory named his other cousin, Dave, the beneficiary of his $500,000 life insurance policy. After Gregory passed away, Jeff was furious that Dave received a $500,000 check from the insurance company and demanded that Dave give him the money. When Dave declined, Jeff immediately contacted his New York estate probate lawyer because he felt that as Gregory’s sole beneficiary he should be entitled to the insurance proceeds as well as Gregory’s estate. However, Jeff’s attorney explained that Jeff was wrong because the insurance proceeds were not part of Gregory’s probate estate.
- POD or TOD assets. This includes payable-on-death and transfer-on-death financial accounts. Such assets will go to the designated beneficiaries upon presentation of a copy of the death certificate of the account owner. For example, when you open a bank account, you have the option of adding a payable-on-death designation. Doing so does not make the person a joint owner of the account. The POD person has no interest in your account until you pass away.
- Trust assets. Assets that you transfer to a trust during your lifetime are not probate property. Such assets will go to the trust beneficiaries based on the terms of the trust agreement. However, if the trust is created through your will, the assets must first go through probate before they can be transferred to the testamentary trust. While one advantage of creating a trust is to avoid probate, a testamentary does not accomplish this.
If you have questions about what will happen to your non-probate property, contact an experienced estate probate attorney in New York to discuss your concerns.Steps in probate
Once someone passes away, his or her probate property must go through the administration process before it can be transferred to its new owners. If the decedent died testate- with a will, the executor is the person responsible for managing the estate, while if the decedent died intestate- without a will, the estate administrator is responsible. The general process is the same whether there is a will or not: collecting estate assets, paying estate bills, and distributing assets. Each of these steps involves a number of activities, and can involve complications that can extend the process.
- Collecting estate assets. The executor must locate and secure the estate’s probate property. This may involve securing the decedent’s residence, inventorying the property in it, locating his vehicles, and identifying financial accounts such as bank accounts or investment accounts. It is important that the executor have an accurate valuation of the value of the estate. It may be necessary to pay a professional appraiser a reasonable fee to appraiser unusual property or high value property. The value of the property in the estate must be determined as of the date of the decedent’s death.
- Paying estate bills. Estate debts must be paid before the assets can be distributed to beneficiaries. Estate debt and expenses include taxes, funeral and burial expenses, expenses related to estate administration, and creditor claims. If there are not enough assets to pay estate expenses and debts, the executor must pay estate debts in order of priority based on the category of the debts. According to the Surrogate's Court Procedures Act, payment of the decedent’ funeral expenses takes priority over all other estate debt.
- Distributing assets. The final major step in the process is for the executor or administrator to distribute the probate assets to the decedent’s beneficiaries or heirs based on the will or intestacy rules.
There are several problems that may arise during probate and the administration of an estate. One problem that may develop at the beginning of the process is a will contest. An interested party who believes that the will should not be probated has the right to file a petition objecting to probate. Common reasons for will contests include lack of testamentary capacity, undue include, or fraud.
Other problems may develop because beneficiaries may be dissatisfied with their distributions. Family members who received nothing may decide to contest the will. There may be objections to the manner in which the executor managed the estate or to the fees and expenses he requests to be paid out of estate assets, or other challenges to the work of the fiduciary. Third parties may file claims against the estate, leading to lengthy and expensive estate litigation.
Other problems may occur because there are insufficient assets to distribute to beneficiaries or certain assets are no longer part of the estate. Or there may be beneficiaries that predecease the testator. Whatever the issue, it is the job of the executor or administrator to address and resolve it so that the administration process is concluded as quickly as possible.Contact the Law Offices of Stephen Bilkis & Associates
If you are an executor, beneficiary, or other party who has an interest in an estate that is going through probate and you have questions related to the process, it is important that you discuss the matter with someone with experience. Many complications and problems that often arise during probate can be avoided or minimized with the help of a skilled estate probate attorney serving New York. Contact the Law Offices of Stephen Bilkis & Associates. We have extensive experience representing individuals, executors, administrators, and estates in matters related to probate, administration, and estate litigation. 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, Suffolk County, Queens, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.