Sorting out assets and estates might be the last thing on your mind after you lose a loved one. However, this needs to be done systemically to ensure the proper distribution of assets amongst the beneficiaries.
If you aren’t familiar with the probate process and want to get your hands on a comprehensive guide to it. We are here to assist you.
This blog offers a breakdown of what a probate process can look like and how to ensure it proceeds smoothly.
Filing the Will
The proceedings of the probate process begin with the filing of the will.
A valid will leaves behind an executor; a person responsible for representing the deceased person’s assets. However, if there’s no will or an invalid will, the court has the right to appoint an administrator. The administrator is then given the responsibility to overlook the payment of liabilities and the distribution of assets.
Determining the Value of Assets
After the will has been filed in court and the executor or administrator determined, it’s time to assess the assets and estate’s value. The executor or administrator has to deal with this responsibility. They’re responsible for calculating the assets’ worth through the deceased’s lawyer or accountant, their tax returns file, or their will.
The assets’ gross value is the total value of all the assets that the deceased had in their possession. In comparison, the net value is the total value minus any debts or liabilities that need to be paid off.
Paying Off Debts
Before the assets are divided up amongst the beneficiaries, it’s essential that the executor or administrator pays off the deceased person’s debts. They can get in touch with a debt collector or other sources to know about any debts and liabilities.
These liabilities are then paid off with the assets’ money, and only then the probate process moves forward. However, if there’s no money from the assets, the debts mostly die with their owner.
Distribution of Assets amongst Beneficiaries
Once all the liabilities have been taken care of, it’s time to divide and distribute the beneficiaries’ assets. This division takes place according to the will of the deceased person. But if the will is invalid or simply not available, the administrator divides up the assets according to the state’s statutes. Doing so ensures that all of the beneficiaries receive their rightful share in the assets.
Okay, maybe we went a little overboard with the NOW, but you do need a probate lawyer—sooner better than later. One day you will need your estates, assets, and other particulars to be sorted out.
Imagine not taking the right step at the right time for your posthumous affairs and all potential candidates end up fighting among themselves. But this isn’t Game of Thrones—and you have probate lawyers who can help you with the entire legal process.
What a Probate Lawyer Does
As a legal representative who has been licensed by the state to advise you on your legal particulars, probate lawyers can smoothen out an otherwise drawn-out process. If you die without a will, this complicates things for a probate lawyer.
Whether you need help with securing and assessing states or writing your will, a probate lawyer is there for you. Seniors usually find it hard to deal with the hassles involved in a legal process. There’s too much paperwork and jargon to deal with. A probate lawyer means you don’t need to worry about these trifles now. You can go about your affairs while your lawyer will take care of the more complicated matters.
Everything We Take Care Of
If you think helping you write your will is the only thing probate lawyers help you with, think again. There’s a lot more that goes into the process, including:
File your will with the relevant local court
Procure appraisals for your property and other assets
File tax returns for deceased clients
Identify and determine beneficiaries
Help resolve any disputes related to your assets
Overall, a process that is otherwise difficult and even bitter for you becomes easier. You don’t have to worry about ensuring you’re making the right choices and not meting out anyone any wrongs. It’s the lawyer’s job now.
Creditors, Beneficiaries, and Others
The beneficiaries will have questions. In the rare off-chance that everyone gets along (and people rarely do), you might have an easier time. Most of these cases, however, require legal counsel to make the process easier.
Usually, beneficiaries are often concerned about things that, if resolved now, won’t become an obstacle later on. Your lawyer can keep these beneficiaries in the loop by regularly sending them letters and emails. Any questions that they have can be sorted out right now. If you are sending these communications yourself (as many clients opt to do), you can ask your probate lawyer to go over them for you.
Where Can You Find a Probate Lawyer?
Where else but right here? Reach out to our associates at the Law Offices of Ledwidge & Associates, P.C. You can plan a consultation with a Probate lawyer Brooklyn, Probate lawyer Queens in person if you’re in New York. We operate in the Queens, Brooklyn, Manhattan, Long Island, and Bronx areas.
According to Forbes, the COVID-19 crisis has forced US citizens to consider estate planning more seriously. As the crisis’s volatility continues to impact our everyday lives, wealth transfer has become more common.
Before you get down to business and start writing your will, here are a few problems that you might face in New York:
A will contest is a legal effort made to invalidate a will. Anyone can contest a will if it’s believed to be procured by fraud or forgery. You can also challenge a will if you have reasonable grounds to believe that the testator lacked the mental capacity to write a will or was made to sign it under duress. A will can also be invalidated if it’s outdated, and a more recent version of it exists or if it isn’t compliant with the state laws.
However, you can’t contest a will just because you don’t like its provisions and terms. Other than that, you also must be directly affected by its outcome to challenge it. A legal heir or a beneficiary can only contest the will. After a will is successfully contested, the court invalidates the entire will, instead of a single provision.
In either case, it’s not easy to contest a will because the entire process also translates into court expenses. Only an experienced probate attorney can simplify the process for you.
There Is No Written Will
This shouldn’t surprise you. 68% of Americans currently don’t have a written will. Dying ‘intestate’ will only complicate the matters for their surviving descendants. According to the state laws, when someone dies without a will, the court decides how the estate will be distributed.
When a New York resident dies without a will and no children, the surviving spouse usually inherits the estate. If there are more legal heirs, the surviving spouse only gets $50,000, and the rest is divided among the descendants. If there is no spouse, the entire estate is inherited by the descendants.
This is a problem because you might not want your estate to pass on to your surviving spouse, especially if you’re not on good terms. A large number of Americans prefer leaving their estate to charities. Your wishes will only be honored if you have a written will.
The Executor Isn’t Carrying out Their Duties Well
An executor is the individual chosen to oversee the probate and honor the deceased’s wishes. Your chosen executor can step down from the role or choose not to have a say in how the estate is distributed. This usually happens when they take upon the duty without realizing the gravity of the responsibilities and pull out later. In this case, the court will check if you name a successor executor. If there isn’t one, the judge will appoint an estate administrator to carry out the probate duties.
With the right probe representations, none of these problems are too big. If you’re based in Brooklyn, Manhattan, or Queens, The Law Offices of Joseph A. Ledwidge, P.C. can help you out! Joseph Ledwidge Attorney has around 20 years of experience in helping clients deal with complicated probate cases. Reach out for a free consultation.
When you’re planning your estate, your goal should be to spare your family and legal heirs the hassle as much as you can. The probate court proceedings could be very extensive, costly, and complicated. If you’re based in New York, here’s when you can avoid probate:
If you jointly owned property with your deceased spouse, the probate process won’t apply if you had ‘rights of survivorship.’ In this case, the surviving spouse automatically becomes the owner after one of the owners passes away. However, you still might need to present some paperwork to the court to prove that the surviving owner now holds the property.
Joint tenancy: You’re called a joint tenant if you and your partner (married or not) own an equal share of the property. Joint tenancy applies to real estate, bank accounts, valuables, and vehicles.
Tenancy by the entirety: Unlike joint tenancy, this form of ownership is only applicable to married couples if their real estate is co-owned.
A POD designation (payable-on-death designation) applies to bank accounts, certificates of deposits, and savings accounts in New York. Under this system, you have full control and full rights over the money in your accounts until your death. After your death, the same right passes on to the beneficiary automatically without going through the court proceedings.
Transfer-on-death or TOD applies to your securities and financial assets. You can register your brokerage accounts, bonds, and stocks in a TOD form in New York. You also need to name a beneficiary in the same form. The designated beneficiary will automatically inherit your financial investments after your death. Instead of going through the probate proceedings, the beneficiary will directly deal with the brokerage company.
According to the state law of New York, TOD deeds don’t apply to vehicles or real estate.
Any assets placed in a living trust don’t need to go through probate. You can hold almost any asset in a living trust, including bank accounts, real estate, and vehicles. All you need to do is create a trust document, assign a successor trustee, and transfer your estate ownership to the trust. After this point, the property’s ownership will be controlled in terms of the trust. After your death, the successor trustee can transfer the assets to the trust beneficiaries without court proceedings.
The Law Offices of Joseph A. Ledwidge, P.C. helps families simplify the probate process in Brooklyn, Queens, and Jamaica. Joseph Ledwidge attorney has around 20 years of experience in dealing with the most complicated probate cases.
In New York, probate is necessary for assets solely owned by the deceased and haven’t been legally bequeathed to a designated beneficiary. This means that if the property owner passes away without a written will, the probate court will distribute the estate according to the state laws. However, if the property holder leaves behind a will that stands uncontested, the probate has a limited role to play.
What Are Probate And Non-Probate Assets?
Assets that can go through probate include solely-owned bank accounts, vehicles, antiques, cash, art pieces, and jewelry. On the other hand, non-probate assets include:
Any bank accounts with named beneficiaries.
Life insurance policies with named beneficiaries.
Jointly held real estate.
Assets held in a trust.
Probate may also not be necessary if:
The total value of the estate is not big.
The estate only comprises non-probate assets.
The deceased left behind an estate plan to avoid probate.
A Quick Look at the Probate Process
Here is the process that follows:
The executor starts off the process by filing the probate petition. For this, they need a copy of the deceased’s death certificate and the original will. Both of these documents need to go to the Surrogate’s Court of the County, where the deceased individual last lived. The exact filing fee depends on the total size of the estate.
The next step is to itemize the inventory. The executor will collect the deceased’s physical and non-physical assets and appraise them as of the date of death.
The executor will also use the estate funds to pay any outstanding debts, liabilities, and taxes. If the estate doesn’t comprise enough cash, they might need to sell one of the assets.
The next step is to notify the distributees (legal heirs). The formal notice is called a citation, which also goes to the Surrogate’s Court. The estate is then distributed according to the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trust Law (EPTL).
Other than this, probate law also involves matter related to contesting a will, spousal rights, estate planning for blended families, and administration of a trust. If the process sounds overwhelming, try seeking help from a well-experienced probate attorney.
There is no better option in Brooklyn than The Law Offices of Joseph A. Ledwidge, P.C. Joseph Ledwidge attorney himself has around 20 years of experience in dealing with complex estate matters.
Try us out. We also offer services in Queens, Manhattan, and Jamaica.
Preparing for the end of your life sounds challenging, but it’s something that you should do, notwithstanding. Having a well-thought-out will is not just essential for seniors but for the youth too. Life is uncertain. The best you can do for your children is to plan your estate carefully and intelligently.
Let’s cover the basics of estate planning:
Make a list of your belongings.
To get started with your estate planning, you need to begin to itemize your inventory or belongings. This may take a few days. Grab a paper and pen and start looking around for all the tangible and intangible assets you own. After you’ve enlisted the assets, you should also mention their estimated market value, date of purchase, purchase price, appraisal and valuation reports, and the number of years it’s been with you.
Your tangible assets may include real estate, property, homes, precious metals, ornaments, jewelry, antique collectibles, trading cards, cars, motorcycles, and boats. Intangible assets mostly comprise your investments, receivables, and bank accounts. Common examples of intangible assets include retirement plans (IRAs), savings accounts, mutual funds, stocks, bonds, certificates of deposits, treasury bills, and business ownership. When you’re enlisting these items, write down account details and the company/institution where your investments are held.
Consider Your Family’s Needs.
Your estate planning will also revolve around some important family decisions. If your children are still young, you need to name a guardian and backup guardian (if the primary guardian doesn’t survive). This will ensure that your children are taken care of and help avoid costly court fights. You don’t need to assume that your immediate relatives will share your child-rearing goals. Document your childcare-related wishes as explicitly as you can.
If you’ve remarried and don’t name a guardian, the child’s custody automatically goes to the surviving biological parent. If you’re not on good terms with your ex-spouse and don’t want this to happen, specify it in the will.
Review the Beneficiaries.
When you’re writing your will, don’t leave any beneficiary sections blank. In this case, when the will goes through probate, the assets will be distributed according to the estate laws. We also recommend contingent beneficiaries that get the property if the primary beneficiary dies before you do.
If you’ve remarried, you might want to update the beneficiary list. Let’s say your ex-spouse is still a beneficiary on your life insurance policy; your current spouse will not get a penny from the policy payout. The same goes for your retirement account. Keep track of and update the beneficiary designations as needed.
The last step is to select an estate executor who will in charge of administering the last testament. Choose someone competent, responsible, and possesses good decision-making ability. Your spouse isn’t always the best choice, especially if losing you takes a toll on their emotional well-being.
If the process sounds complicated, we recommend seeking help from a well-qualified estate and probate lawyer. If you’re based in Brooklyn, Queens, or Manhattan, and are looking for Queens Probate lawyer or Brooklyn Probate lawyer there is no better option than the law office of Ledwidge & Associates, P.C. We have over 20 years of experience in handling complex probate cases. You can contact online or give us a call at 347-395-4799 to arrange a consultation with an experienced New York probate attorney.
The great comedic actor Gene Wilder recently passed away from Alzheimer’s disease complications at 83 years old. He wanted people to best remember him for the laughter he brought audiences in Willy Wonka & the Chocolate Factory , Young Frankenstein and Blazing Saddles, among others, so he kept his condition out of the public eye.
As his family told The Washington Post , “The decision to wait until this time to disclose his condition wasn’t vanity, but more so that the countless young children that would smile or call out to him ‘there’s Willy Wonka,’ would not have to be then exposed to an adult referencing illness or trouble.” Wilder leaves behind a loving family, wife of 25 years, and countless adoring fans. He also, reportedly, had an estimated net worth of about $20 million at the time of his death. When faced with a debilitating illness such as Wilder experienced, many people want to be remembered for the highlights of their lives and prefer to maintain a level of privacy as their star fades. But that secrecy can raise issues about estate plans. Keep in mind that emotions run high when someone we love passes and that’s a good reason to have your affairs in order before you decline. Another reason is to protect against those who might prey on human frailty and direct estate finances to their own benefit.
If you are a beneficiary, or should be the beneficiary, of an estate plan involving someone with a debilitating condition such as Alzheimer’s Disease, and you are surprised at the estate plan, there may be a legally valid reason to contest the will or trust. Some of the reasons are listed below.
Lack of capacity
Estates can be challenged based upon a person’s lack of mental capacity. It’s not uncommon for someone who was disinherited to bring such a claim. Ask yourself, was the person who passed of sound mind, memory and understanding when they executed the plan? Here are a few things to consider:.
Did the testator (the person creating the will) understand the plan and all of its provisions?
Did the testator understand the full, detailed breadth of their assets?
Was the testator affected by a mental or physical disorder when making these decisions?
Another delicate issue than can arise out of changes to an estate after a person has become ill is undue influence. Those closest to a person with failing health and faculties have tremendous sway over the life of someone in failing health and can create a bias toward or against certain family members, loved ones and charitable organizations. Like lack of capacity challenges, this too can have a mixed bag of emotional and financial motivations. Here are some things to consider if you are considering a challenge because a will doesn’t reflect a person’s true wishes:
Was the testator directly coerced into making stipulations or changes?
Was the testator overly dependent or trusting of the person who exerted influence?
Was the testator susceptible due to illness or frailty?
Did the person exerting influence substitute his/her wishes for the testator?
Contesting a will
Gene Wilder’s family explained that he maintained privacy about his illness because “He simply couldn’t bear the idea of one less smile in the world.” Proper estate planning can maintain those smiles after you pass as well. However, if you believe an estate does not reflect the wishes of a family member or loved one, contact a law firm with experience in estate planning and probate cases.
New York basketball fans may be interested in learning about the legal battle that’s brewing in Oklahoma City over the ownership of that city’s NBA team. A 20 percent share in the Oklahoma City Thunder basketball team is in dispute. The interest was held by an oil and gas mogul who died in a car crash on March 2. His creditors want the stake in the basketball team to be sold to the highest bidder to pay for debts, but there is concern among creditors that it will instead be sold to his wife for a lower price.
Creditors believe that McClendon’s estate may be insolvent, which would mean that there might not be enough assets in the probate estate to repay debts. The 20 percent stake in the Oklahoma City Thunder may be the estate’s most valuable asset. Attorneys for the estate have stated that the assertion that the estate is insolvent is incorrect.
McClendon had used his share in the basketball team to guarantee a loan from Oaktree Capital Management LP. The court granted the estate a waiver on inventorying assets because the estate has argued that making the value public at this time might adversely affect the value of the assets.
When a person dies with debts and there are valuable assets in the estate, creditors usually must be paid before assets are distributed to beneficiaries. When there is a dispute about the distribution of assets , probate litigation may result.
A beneficiary facing estate litigation may wish to consult an attorney. An estate planning lawyer might be able to help draft documents creating a will or trust that can help prevent probate litigation in the future.
When New York residents become incapacitated and unable to make decisions for themselves, the probate court may place them under guardianship. While a guardianship is beneficial for some people, others are handled abusively, leaving families trying to figure out what to do about it.
An example of an abusive guardianship was the one involving Brooke Astor, the philanthropist. Her grandson learned that she was not being given her prescription medication and was being isolated from family and friends. He petitioned the court to remove his father as his grandmother’s guardian, and it was learned that his father had stolen significant amounts of money from her estate .
Unlike the family members of Mrs. Astor, most people do not have the same type of financial resources needed to fight a case through the protracted court process it could turn out being. The Americans Against Abusive Probate Guardianship surveyed families nationally in 2015. Ninety percent of those who responded reported that the judge in their loved one’s case was not acting in a manner that was in their family member’s best interests. Eighty percent believed the judge was influenced, and 70 percent thought retirement homes where their loved ones were placed were not acting in their family member’s best interests.
When an abusive guardianship is suspected, people may petition the probate court to be added as an interested party. They may also petition the court to remove the guardian if they have evidence the guardian is committing financial abuse. People may want to consult with an attorney who has experience with these types of matters for advice regarding the steps they might take in their loved one’s case.
The thought of having an estate go through probate could be worrisome for some New York residents, especially if there is a significant possibility of some potential heirs disputing the distribution of assets as outlined in a will. Avoiding probate can save both time and money, and some of the potential stresses and contentions might be minimized as well. Further, avoiding probate can protect the privacy of those involved. However, it is important to understand the steps needed to limit the risk of a drawn-out probate process.
One of the most common strategies for limiting probate activity is to use a revocable trust to manage assets. This allows heirs to be designated and assets to be distributed promptly upon the death of the grantor. A trust is not handled publicly, which serves one’s interests in keeping such personal matters private.
If there is an interest in handling certain assets outside of a trust or will, joint ownership might be helpful. For example, a home would be transferred to the other party rather than being subject to probate . This can be handled through options such as joint tenancy, tenancy by the entirety or through community property laws. However, joint ownership must be established prior to one’s death. A retirement account or other personal account can be transferred on death to a designated beneficiary, which can keep such an asset out of probate.
The legal costs of probate can be high when there are valuable assets involved. An individual might want to consider giving away some assets to avoid this issue. Estate planning can be complex for those who have unusual assets or family situations. However, an experienced lawyer can often provide helpful strategies for addressing special needs, serious areas of conflict, or other unique issues that might impact the handling of one’s assets.