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A Complete Guide to the Probate Process

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.

probate lawyers written on scrabble

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.

Last Will and Testament documents

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.

 

If you’re looking for a probate lawyer to assist you through this challenging task, then Ledwidge & Associate, P.C., is at your service. Clients acknowledge our law firm in New York for our brilliant work and our remarkable customer service. Our litigation, probate, divorce, and Family Law Attorney Queens and Family Law Attorney Brooklyn deliver their best to ensure that you get your rights according to the law.

Learn more about our law services on our website.

Why You Need a Probate Lawyer to Figure Out Your Estates NOW

an old man on a bench

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.

rows upon rows of law books

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.

 

Common Probate Issues

A probate lawyer in New York helping a client with the estate planning process.

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:

Will Contests

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.

A deceased individual’s last 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 Is Probate Not Necessary In New York?

A trustee signing a living trust and helping a property holder avoid probate

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:

Joint Ownership

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.

The last will of an individual

Payable-On-Death

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

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.

Living Trust

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.

Speak with us for a free consultation.

 

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.

 

Does Life Insurance Go Through Probate?

Life insurance enables an individual to purchase a policy that, in the event of their death, will distribute financial benefits to their surviving loved ones who are named by the policyholder in the documentation. It is a popular option for persons who wish to ensure the financial security of their family or another party. Yet life insurance is not without potential complications. Among these is the possibility that the life insurance policy will have to go through a lengthy probate process before any benefits can be distributed.

The good news is that, in general, life insurance claims do not go through probate. In most cases, the money is distributed directly to beneficiaries listed in the policy, without the need for court intervention. However, there are important exceptions to this rule, and those are what we will focus on here.

Life insurance document with pen on top

Life Insurance: The Basics

A life insurance policy is fundamentally an arrangement made with an insurance company to provide a tax-free lump-sum payout—known as a “death benefit”—to certain named parties after the death of the policyholder. The insured person is required to make premium payments according to a given schedule (monthly, semi-annually, or annually) to maintain a valid life insurance policy. These policies are available in many different types; here are some of the more common options offered by insurance companies:

  • Term life insurance – This type of insurance is valid for a limited period of time, usually 5, 10, 15, 20, 25, or 30 years. It is most often used to provide financial security to beneficiaries if the insured person dies during their employment years.
  • Universal life insurance – This form of life insurances gives the policyholder wide latitude in adjusting the death benefit and the premiums to be paid. The insured person is also permitted to withdraw funds when needed. Unlike term life insurance, universal life policies are intended to cover the entire lifespan of the policyholder.
  • Whole life insurance – This form of insurance requires fixed premiums, but the value of the policy increases in a consistent manner. Whole life policies also provide annual dividends. Like universal life insurance, it covers the entire lifespan of the policyholder.

How the Death Benefit Is Distributed

Upon the death of the insured person, the value of the policy is paid out to the named beneficiaries. Some policies have only one beneficiary, while others have multiple beneficiaries. In cases where more than one beneficiary is named, the policyholder can decide how much should go to which party—the death benefit is not necessarily divided equally among the recipients. If the precise ratio of distribution is not specified, then the benefit will be divided equally.

What happens if a named beneficiary dies before the insured person does? If there is a co-beneficiary named in the policy, then they will receive the portion that was to be allocated to the deceased beneficiary.

Another option with life insurance policies is to name a contingent beneficiary—i.e., a party who is next in line to receive the death benefit. If there is no primary beneficiary available to accept the benefit, then it is automatically passed on to the contingent beneficiary. This occurs without the need for probate court. That’s why it is generally advisable to name a contingent beneficiary in your life insurance policy—it can prevent a lot of trouble.

Probate form and gavel on top of it

When Do Life Insurance Claims Go to Probate?

There are cases involving the distribution of life insurance benefits that require probate court to sort out the issue. Probate court specializes in the administration of estates, the enforcement of wills, the distribution of life insurance benefits, and related matters. Whenever there is no available legal beneficiary for a life insurance policy that is due to be paid out, probate court enters the picture to adjudicate the problem.

Life insurance claims will likely go to probate if any of the following conditions arise:

  • There is no living beneficiary – If the named beneficiaries die before the insured person does, the death benefit cannot be paid out to them. Why does this happen? People often forget that they need to update their beneficiary designations if their intended recipient passes away. In these situations, the policy is sent to probate.
  • There is no beneficiary named on the policy – When no beneficiary is specified on the life insurance policy, the benefit may become part of the policyholder’s estate, which will require probate. Often, though, the insurance company will try to locate a living relative of the policyholder to accept the benefit.
  • The beneficiary refuses the benefit – Beneficiaries are allowed to refuse the money if they so desire. When this happens, the beneficiary is treated, for legal purposes, as a deceased person. The benefit would then pass on to a contingent beneficiary or another qualified party; if this isn’t possible, it becomes a matter for probate to sort out. The same rule applies if the beneficiary is presumably alive but cannot be located.
  • The beneficiary is a minor – A life insurance company will not pay a death benefit directly to an individual who is legally considered a minor. Under New York State law as it pertains to life insurance policies, a minor is anyone under the age of fourteen years and six months.
  • The estate is the named beneficiary – It is permissible for a policyholder to list their own estate as the beneficiary. This frequently happens when the policyholder wishes to increase the overall value of their estate. However, this option means that the death benefit becomes part of the estate, and subject to the oversight of probate court.
  • The beneficiary is vaguely identified – Sometimes it just isn’t clear who the beneficiary is supposed to be. This can happen when the beneficiary is identified by some potentially ambiguous label like “my neighbor” or “my cousin.” That’s why it’s best to ensure that all beneficiaries are explicitly described—by name, Social Security number, and/or any other information that makes it easy to identify them.

The foregoing is not a complete list of circumstances that can require the intervention of probate court to adjudicate a life insurance payout.

Wills and Life Insurance

Some people assume that the stipulations of their will can override the terms of their life insurance policy. They attempt to use their will to make revisions, so to speak, to their policy. They may add or subtract life insurance beneficiaries in their will, or make another type of amendment. It might seem to be an agreeably easy way to make changes to a life insurance policy without needing to fill out a lot of paperwork.

The problem with this approach, however, is that a will does not supersede a life insurance policy, which is a legal document with the force of the law behind it. To put it another way, if there is a conflict between a person’s life insurance policy and their will, the life insurance policy wins out.

Contact Joseph A. Ledwidge, P.C.

With 20 years’ experience in the field, Joseph A. Ledwidge, P.C., is the legal advocate you need on your side when it comes to navigating the New York State probate process. He is a member of the New York State Bar Association and the Queens County Bar Association. Our firm represents parties involved in many kinds of probate, estate administration, trust administration, and spousal estate rights matters. To contact a New York probate attorney, please call our office at 718-276-6656 today. A free consultation is available.

Banner of justice holding scales

What should I know about letters testamentary?

You might wonder how an executor gains the legal authority in New York to take direct charge of the finances and property of a person who has died. It is actually quite simple. The legal authority to start managing an estate comes when a probate court issues letters testamentary. Whether you are preparing to become an executor yourself or are just a beneficiary, it is important to know what part letters testamentary play in probate matters.

As Bankrate explains, after an individual has passed away, a probate court will determine the validity of the decedent’s last will and testament. Assuming that the decedent had named a person in the will to take on the duties of the executor, the court will authorize that person to act as the executor if the court rules that the will can go into effect. This authorization occurs when the court issues letters testamentary.

Letters testamentary allow a person to perform all the necessary duties of an executor. The executor is allowed to open a bank account in the estate’s name and gather the money of the estate into the account for the purposes of closing out the various matters of the estate. These can include paying off bills and taxes the decedent had still owed before passing away. Additionally, the executor is empowered to take inventory of the assets of the estate, file the final tax return for the estate, and distribute the assets of the estate.

In the event that someone dies without a will, a court will not authorize letters testamentary. Since the decedent did not make a will and did not name an executor for the estate, the decedent’s estate is deemed intestate. It will be up to the court to appoint someone to be the executor. To authorize the executor to carry out the duties of the position, the court will issue letters of administration.

Keep in mind that this article is written to educate New York residents on probate topics. Since issues with probate take many forms, this article should not be read as legal advice.

Is there a problem if executors are slow to communicate?

It is a scenario that some people face. A family member has passed, yet the executor of their deceased loved one’s New York estate has barely reached out with news about the estate and its assets, if the executor has communicated at all. You might think something is up and are exploring legal action against the executor. However, slow communication may not be a sign that you should worry, at least not yet.

As ThinkAdvisor points out, estate administration is not a quick process . It may take months or perhaps even years to complete because of the various legal hurdles that the executor must get over, including sending the estate through probate and dealing with creditors who are claiming some of your loved one’s assets due to old debts. There might also be tax problems that could take years to resolve. All of these duties may hamper an executor from making regular communications to beneficiaries.

The range of responsibilities can feel overwhelming for some executors. In addition to the ordinarily slow process of administrating an estate, an executor may lag in talking to you due to trying to figure out how to handle the duties of the office. Some executors may be occupied seeking out help from outside parties, such as an attorney, to figure out legal and financial matters.

Nevertheless, beneficiaries of an estate will want to know that assets promised to them are in good hands. An executor, even if not ready to dispense the assets, should still let the beneficiaries know that the estate is secure. Shortly thereafter, an executor should convey a description of how the estate will be administrated and copies of the important estate planning papers. Regular communication from the executor to the beneficiaries should follow.

Since it is possible an executor’s lack of communication is not due to malice, it could be a smarter move to reach out to the executor or discuss the matter with fellow beneficiaries to decide on how to approach the executor. However, if an executor continues to remain silent or is too vague or infrequent in talking to you, you might want to see if the estate is having any problems that the executor could be covering up. Consultation with an attorney would also be appropriate.

Probate litigation can take many forms. For that reason, do not consider this article as offering any legal advice, and read it only for educational benefit.

What happens to overseas assets in estates?

Whether your will could pass through probate without your overseas assets diminished by U.S. tax depends on a variety of factors. It also is possible that you could avoid putting some of these assets in your will by establishing a trust, thereby avoiding the probate process in most cases. 

For assets you do not wish to place in trust ownership or move to the United States, you would probably want to consider a number of key points for each. It is often helpful to keep in mind that the court will likely have a different set of rules for nearly every gift you intend to bestow.

The most common concern for wills in terms of United States taxes and foreign assets is often the gift tax. Real estate, securities and other forms of wealth you intend to transfer from outside of the country may be subject to this tax if they come from certain non-treaty nations and exceed a specified dollar value. 

Only a few foreign countries hold gift tax treaties with the United States. As stated on the IRS website, these select nations include some of the USA’s most dedicated  business and trading partners :

  • The United Kingdom
  • Japan
  • Denmark
  • Australia

However, it is not always safe to assume that a court would your assets as foreign. It would be in your best interests to look at each line item in your will individually to determine the exact IRS definition under which it might fall.

Knowing the details of these treaties could be an important first step in developing a strategy for your foreign assets in an estate plan. however, laws change all the time and this should not be considered specific advice. It is only meant to inform and educate.