An Overview of the Probate Process in New York

An estate lawyer in Brooklyn helping a client write her last will.

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.
  • Retirement accounts.
  • 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 deceased individual’s last will.

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).

Seek Guidance from a Probate Attorney Brooklyn

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.

An Estate Planning Checklist for Beginners

A house in Brooklyn passed on to a beneficiary through a probate

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.

A probate courthouse

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.


Gene Wilder’s privacy, wealth raises estate planning issues

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?

Undue influence

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.

Oklahoma City Thunder stake in dispute in probate court

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.

Abusive guardianships of the elderly

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.

Important steps for avoiding probate

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.

New York legal advisors may help with will disputes

Wills written by New Yorkers aren’t always probated as smoothly as possible following the deaths of the testators. In some cases, survivors and beneficiaries get into legal spats over the validity of wills and other estate documents. Valid concerns such as potential fraud, the mental state of the testator or the existence of other wills can all be used to initiate disputes that impact the process of distributing the testator’s property.

In some instances, beneficiaries feel that certain individuals used undue influence to manipulate or even bully testators into writing wills that benefit them unjustly. These parties may employ numerous techniques to obtain will terms that work to their advantage, such as restricting access to a weakened, dying individual or convincing them that other potential beneficiaries bear them ill will. Such actions can jeopardize otherwise amicable family relationships, make it harder to come to terms with tragic loss and impede the correct execution of a will.

Because lost wills, incorrect estate administration and improper will execution can all lead to unjust outcomes, most courts have established mechanisms by which people can dispute wills. When wills go through probate to have their validity confirmed before property is distributed, beneficiaries can choose to negotiate or litigate in order to protect their due entitlements.

Will disputes can be complex, so it’s important that they’re managed properly. Failing to negotiate terms that everyone can agree on could seriously delay the distribution of estate assets or benefits, and entering litigation without an appropriate plan may result in legal expenses that cut into the costs of any benefits you ultimately receive. For more information on how to ensure all beneficiaries receive equitable proceeds after losing their loved ones, visit our page on will contests .

Probate process in New York

When a person dies, whether or not there is a will, the decedent’s estate will be subject to the probate laws for the distribution of his or her assets. Probate laws exist in order to protect creditors, beneficiaries and heirs, and the probate process involves making certain taxes and debts are paid as well as passing assets to beneficiaries or heirs.

If a person dies with a will , then the person who is named by the decedent as the executor must then file the will in court. The court will determine the will’s validity. The executor will also be responsible for notifying the decedent’s beneficiaries and creditors. The executor will inventory all of the assets held by the estate and be responsible for paying creditors who make claims as well as taxes and legal expenses. Finally, the executor will then distribute assets according to the provisions of the will.

When a person dies without a will, the court will appoint an administrator for the estate. The administrator will have similar duties to pay taxes and creditors that are owed money. The assets will be distributed according to the state’s intestacy laws at the end of the probate administration process.

Most people benefit by drafting wills and other estate planning documents rather than dying without them. By doing so, they can help to make certain their assets are passed according to their wishes rather than according to the intestacy laws. People may want to be careful when they are deciding who to name as the executor of their estates. Will execution can be a complicated process involving substantial time, documentation and paperwork. It may be a good idea for people to make certain that the executors they are thinking about naming will be willing and able to complete the duties that will be required of them.

New York neighbors face probate fee hikes of up to 1000 percent

New York residents unhappy with their tax burden may wish to spare a thought for some of their neighbors. Connecticut has raised several state taxes and fees to bridge large budget gaps, and the increases have been implemented retroactively to Jan. 1, 2015. Among the most contentious tax and fee hikes are changes to the probate fee structure that have led to tenfold increases in fees for many estates. While many wealthy Connecticut residents are now said to be thinking about moving out of the state, observers feel that growing financial pressures will prompt other states to impose similar measures.

Connecticut’s revised probate fees were implemented in June after funds for the state’s probate courts were eliminated as legislators struggled to balance the budget. While Connecticut’s estate tax of 12 percent is not excessive compared to other states, a new 0.5 percent probate fee on estates valued at more than $4.754 million and the elimination of a $12,500 probate fee cap have led to estates receiving six-figure probate fee bills.

The probate fees for a Connecticut woman who died in the spring of 2015 would have been capped at $12,500 under the old fee structure, but they will now shoot up to almost $250,000 even after a 50 percent surviving spouse discount has been applied. Some families may think that they can avoid such fees by setting up trusts to avoid probate, but this strategy would be unsuccessful as Connecticut bases the fees on the amount of assets listed on estate tax returns regardless of whether the probate process is employed.

The tax and fee increases in Connecticut are a powerful reminder of how important it is to review estate plans on a regular basis. Attorneys may suggest strategies that could limit fees and taxes even when trusts are unable to accomplish this goal. Such measures could include gifting part or all of an estate or establishing joint property ownership arrangements.

Trusts useful for some estates but not all

Trusts are important components of many New York residents’ estate plans, especially for those people who own many high-value assets. These estate planning tools can help beneficiaries to avoid taxes and probate fees while performing other functions like protecting financially irresponsible heirs from receiving a sudden windfall. Although trusts can be very useful in a variety of circumstances, they are not always necessary for every estate.

There are fees for trust administration, and beneficiaries of trusts will be required to file annual trust tax returns. For some people, these costs outweigh the benefits of creating a trust. If a person’s estate is not very complex, they may be content to simply list chosen individuals as the benefactors of their financial accounts and trust these people to handle the funds responsibly.

A person who owns property in multiple states or wishes to protect assets from creditors or a divorce settlement may want to set up a trust. A trust can also be a valuable estate planning tool for a person who has a child with special needs. Many people decide to create a living trust so that they can determine how their assets will be handled if they ever become incapacitated during their lifetime.

An attorney may be able to help an individual to determine whether or not using trusts would benefit their estate plan. There are many different types of trusts, and an attorney may help to describe the costs and benefits of each. While looking at a person’s unique circumstances, an attorney may also suggest other tax-saving financial tools such as strategic gifting.