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.

What happens if I die without creating a will?

Most people in America understand that it is important to have a will to ensure that when a person passes away, their property will transfer properly to their beneficiaries. However, far too many people put off creating any kind of will at all, because they assume they’ll get around to it, or possibly even fear creating it.

In the last several years, we’ve seen several high-profile celebrities pass away with significant estates and no will to direct how to disperse their property. Unfortunately, this means that the government must step in and more or less seize the property until it determines how to disperse it according to state law.

Failing to create a will places those you love in the difficult position of depending on the good graces of the government to determine what portion of your estate they receive, or if they get anything from your estate at all.

If you have yet to create a will, don’t wait any longer. The sooner you create your will, the sooner you can rest assured that your loved ones won’t have to deal with the long, frustrating process of estate administration, and the sooner you can protect your wishes for your property.

Dying intestate

If you pass away and have no will to direct your estate distribution, then the law must determine who gets a portion of your estate. This typically has nothing to do with your preferences, even if you verbally expressed them to others many times.

Instead, the law follows guidelines based around how many direct and extended family members are still living. For instance, if you are single when you die and have no children to inherit your estate, then your estate typically goes to your parents, or if you have no living parents, then to your siblings, and so on.

If you are married or have children of your own, the law breaks down very specifically which party receives a portion, and the specifics of your circumstances are crucial here. Should you pass away with a domestic partner, the state may or may not recognize them as a direct beneficiary.

Each configuration of surviving family members changes how the distribution occurs, but, in most cases, the distribution is not satisfying to the parties involved. Unless you truly do not care at all about your family and beneficiaries, or your property, then it is very important to create a will as soon as possible.

Protect yourself now

Waiting to create a will is gambling with your own property and with the lives of those you love. Navigating the estate administration process is not simple, and it typically depletes the value of the estate along the way. Be sure to create a will as soon as you can to make your wishes for your property known and to help those you love avoid a lengthy and frustrating legal process after you pass away.

How to dispute a will

When it comes to challenging a will, New York residents may find the process difficult. However, there are times when someone, especially the decedent’s spouse, can successfully challenge a will based on certain circumstances.

One of the ways a will can be challenged is if there is an alternate will that trumps the present one. When an outdated will is in the process of being executed, a newer one can trump it. Usually, an older will is destroyed once the testator creates a new will. Since the court’s goal is to fulfill the decedent’s wishes, it will probably take into consideration an updated will.

Another ground for challenging a will is if the testator’s capacity is held in question. In order to prove before a court that a testator lacked testamentary capacity when he or she created a will, there must be evidence showing the testator suffered from substance abuse, insanity, dementia, senility or from another factor that negatively influenced the person’s mental abilities at the time the will was written. Moreover, a will is not legal if it was created by a person younger than 18 years of age. However, a will written by a minor is considered legal in some jurisdictions if the minor is married or is serving in the military.

People can also challenge a will if they believe that the will is the result of undue influence, forgery or fraud. It must be clearly evidenced in such cases that the testator was manipulated into writing the will in a way that he or she left all or the majority of his or her valuables to someone who had influence in the testator’s life, such as a caregiver, friend or relative.

Disputing a will can be time consuming and complicated. However, an experienced probate attorney could explain the laws regarding the matter and offer solutions that might result in a favorable outcome.

Source: FindLaw, “Reasons to Challenge a Will” , accessed on Dec. 9, 2015

2nd will before court in New York man’s ongoing estate saga

According to reports, a second will has now been filed for the court to consider in the ongoing case of a wealthy Staten Island man who died, leaving a $40 million estate without apparently having heirs. The 97-year-old man’s wife predeceased him, and they had no children.

Another will that had been filed in the case was thrown out of court and dismissed. Now, an attorney representing a woman who died in 1999 and her estate has come forward with a new will for the court to consider. That woman’s caregiver of more than 20 years is the sole beneficiary of her estate.

Reportedly, the man and the woman had been lovers during World War II, until she was sent to Siberia by the Russians and he was sent to a concentration camp by the Nazis. She reportedly had been pregnant with his child but lost the baby in Siberia. Her caregiver reportedly found a will containing a letter, partially written in Polish, that was sent to the woman in 1987 by the man. In the letter, the man allegedly wrote that he was leaving all of his fortune to the woman due to their being separated by war and her losing their child. It is unclear whether the man behind the first will is intending to file an appeal or not. After taxes, the deceased man’s fortune is currently valued at $29 million.

When a person dies, leaving an estate behind with no valid will, the probate process will include trying to find any potential heirs. Without a will and other estate planning tools, the decedent’s estate could be subject to taxes that may have been avoided with the appropriate documents.

Source: SI LIVE, “What’s next? Fight for S.I. millionaire’s fortune shifts to 2nd will,” Mira Wassef, Nov. 23, 2015.

Estate planning for married couples

Many married couples in New York assume that they do not need to write a will. Couples believe that when one spouse dies, everything will simply be passed to the surviving spouse. While this is in some cases true, these matters can be much more complicated when a couple has children. To ensure that there are no disputes between family members, it is always important for people to state their intentions clearly in a will.

When one spouse owns a house that the other spouse’s name is not attached to, it is important to add the spouse’s name to the deed . If this is not done before the homeowner dies, the surviving spouse will in some states only inherit the house as a ‘life estate.” This means that the surviving spouse may live in the home as long as they are alive, but they cannot sell it. After the owner of a life estate dies, the house goes to the original homeowner’s children.

Another problem that could arise when married people do not write wills involves financial accounts. If a family member puts their name on an elderly person’s bank account before they die, the family member could inherit everything in the account even if that was not the person’s intention before they died.

A lawyer may be able to help a married couple to write wills, set up trusts and create other estate planning documents to help them during their life. If a couple has not changed their wills for many years, an attorney may be able to help them update their wills so that they can take advantage of new estate planning tools.

Using digital document archives for estate planning

Digital document archives are becoming popular among people in New York who are planning their estates. Sites like Everplans, Principled Heart and AfterSteps provide a platform where people can easily store digital versions of estate planning documents like wills, trusts, powers of attorney and health care directives. Digital archives can also house important financial information and personal assets like photos.

Many people are attracted to digital document archives because they offer a simple solution for organizing vital documents and keeping them all in one easy-to-find place. After a person dies, family members often struggle to carry out the person’s last wishes because key financial information and documents simply can’t be found. With a digital document archive, family members have one go-to place to find everything that is needed to execute a will.

The risks of using digital document archives for estate planning are important to note. Because digital archives are new in the world of estate planning, none of the companies that offer these services have a long and established track record. Estate planning is about long-term planning, and there is always a possibility that a startup company won’t be around in the long-term. If a digital document archive platform is not secure, users risk losing their digitized documents in a computer hack.

Another risk is that an archived will may not satisfy the will execution rules of a particular state. As such, it is important to obtain the advice of an attorney who has experience in probate and estate administration before choosing to use these types of services for estate planning purposes.

Houston and Brown families fighting over Bobbi Kristina’s estate

Many New York residents have heard about the ongoing dispute over the estates of Whitney Houston and her daughter Bobbi Kristina. Both the Houston and Brown families are reportedly fighting over what happens to Houston’s estate. According to a report, members of Whitney Houston’s family are named as the legal inheritors of Bobbi Kristina’s wealth; however, reports also note that Bobby Brown’s family wants to inherit the money.

The inheritance left to Bobbi Kristina included $20 million and royalties from the famed singer’s career. This essentially means that the estate will continue to grow as the royalties keep coming in. When Bobbi Kristina died, she did not leave behind a will. Because Bobby Brown is Bobbi Kristina’s father and potentially a sole beneficiary, he could receive the portion of future proceeds that his daughter had been entitled to under her mother’s will.

However, Whitney Houston’s will stated that if her child did not survive, her mother Emily Cissy Houston was to be given her jewelry. The rest of the estate was to be divided between Houston’s mother, father, two brothers and Bobby Brown, who was still her husband at the time the will was drafted.

Most young individuals wait to draft a will until they have their first child or make a major investment. However, it can be very difficult for families to determine what happens with a person’s estate should they die before a will is drafted. If there is no will, the state law of intestacy will govern the distribution unless family members are otherwise able to agree.

Source: Realty Today, ” Who Will Get Bobbi Kristina’s $20 Million Inheritance From Whitney Houston? “, Sept. 20, 2015

Non-probate transfer methods in addition to wills

As some New York residents may already know, having a will helps to protect one’s family and assures that beneficiaries the decedent chooses receive assets. There are other ways, often used in conjunction with a will, to allocate some assets after death. Learning about specific transfer methods will enable grantors to distribute assets as they see fit without the need for probate.

Transfer on death is one way of transferring assets. In 1989, the Uniform TOD Securities Registration Act was enacted and allows registered securities to be transferred without probate. In this type of asset transfer, the individual maintains control of the securities until his or her death. The beneficiary needs only an ID and a death certificate to assume ownership of the transferred assets. Other than securities, some states allow for transfer of motor vehicles, deeds for real estate and bank and retirement accounts. Such transfer designations may be changed at any time. Giving someone a power of attorney may help if the transferor becomes ill, and the assets meant to be transferred need to be sold.

Another type of asset transfer is when property or other assets are owned by two individuals. Ownership is written in a format that specifies survivorship designation. In such cases, a death certificate and an ID is all that is needed for the transfer.

Having life insurance is another way to ensure a beneficiary is provided for without probate. The person who purchases life insurance names a beneficiary who will receive the insurance benefits directly. It is important to review life insurance beneficiary designations on a routine basis.

Consulting an attorney when determining how one’s heirs will inherit is important. The attorney will help by structuring an estate plan that incorporates different ways to provide for family and friends.

Placing limits on beneficiary spending

When New York residents are going through the estate planning process, they often decide to leave money to designated beneficiaries. However, those who are leaving money to future generations may wish to control how that money is spent. For instance, a parent may not want an inheritance used to support a political candidate or cause that he or she disagrees with.

Perhaps the best way to restrict how an inheritance is spent is to create a trust . The trust may contain restrictive language as long as it doesn’t break the law. It may allow a parent to stipulate, for example, that money given to a child after the parent passes away is only used to make rent payments or used to pay for college tuition. Doing so may sufficiently limit how the money is used without running afoul of free speech or any other laws.

While it may be possible for an individual to exert some control over his or her money after death with a trust, there are still limitations. For instance, the beneficiary can use personal funds to support a political cause or any other cause that a parent or anyone else doesn’t agree with. Those who study estate planning issues say that part of letting go is understanding that it is impossible to change a person’s attitude regardless of the limitations put in place.

Creating a trust may have many benefits for both the grantor and for the beneficiaries. A trust may avoid probate , which may help settle the estate in a timelier manner. Furthermore, the contents of the trust may be kept out of the public record, which may help protect a family’s privacy. An attorney may be able to help a client create a trust or to conduct a periodic review of an existing one.

The importance of a legal signature on a will

Because every state has its own requirements related to the validity of a will, newcomers to New York should pay careful attention to these details. Neglecting to properly execute a will could result in probate complications as well as challenges from heirs. A recent case in Tennessee, for example, resulted in the wishes of the testator being successfully challenged by his son. Although the man obtained witnesses and had them complete and sign a self-proving affidavit, the witnesses failed to sign the actual will.

In the Tennessee case, strict compliance requirements were used to declare the will in question invalid. Some states might have accepted the same will as valid due to substantial compliance. Common requirements that must be observed in will execution include ensuring that enough witnesses are involved and that their ages meet state requirements. Additionally, a will cannot be executed by an individual who does not have the mental capacity to do so. The manner of handling a will’s execution may be evaluated by the courts to ensure that the document has not been created under duress. Further, individuals who stand to gain from a testator’s death are not typically acceptable as witnesses.

Legal support can be important in ensuring that a will meets appropriate criteria. A lawyer may recommend a mention of any prior wills in a new version so that there is no question if a different document turns up after the testator expires. Further, a lawyer may provide clients with the ability to safely store their wills so that there is no worry about tampering or snooping.

People who have recently moved to a new state might want to have their wills reviewed by a local attorney to ensure that any discrepancies between state law and the document are addressed. Further, annual review of a will or estate plan is a strategy for ensuring that major life events are properly addressed within the legal documents.