What Happens To Your Estate If You Die Without a Will

When an individual passes away without having a valid will in place, they’re deemed by the law to have died interstate—which means that the administration and distribution of their estate will be done in accordance with the legislation.

drafting a will

On the other hand, when you have a will, you can dictate the distribution of your estate and appoint an executor of choice who ensures your wishes are carried out.

Who Administers Your Estate When You Die Without A Will?

When an individual passes away interstate, and leave behind an estate that needs an administrator, an eligible person must has to apply with the Court for Letters of Administration. Whoever’s granted the Letters of Administration becomes the estate’s legal representative.

The following is a list of people who’re deemed eligible by the court to be an estate’s administrators:

  • The spouse of the deceased
  • The children of the deceased
  • The grandchildren and great-grandchildren of the deceased
  • The parent or parents of the deceased
  • The deceased’s siblings
  • The grandparent or grandparents of the deceased
  • The decease’s aunts and uncles
  • The first cousins of the deceased
  • Anyone else appointed by the court

When applying to become an estate’s administrator, each individual who has priority over the applicant has to be “cleared of the record.” For instance, if you’re the son/daughter of the deceased who’s applied for the letters of administration, the court will first ensure that the deceased didn’t have a spouse at the time of death.

If You Pass Away Without a Valid Will, Who Will Your Estate Go To?

The distribution of an interstate estate primarily depends upon the deceased’s circumstances. According to the Succession Act (Qld) of 1981, the estate of a deceased person will be bequeathed to their closest next of kin, with the spouse and the children getting first priority. If the deceased was married, but childless, then the spouse will inherit the entire estate.

If the deceased was married with children, then:

  • If the estate’s worth is less than $150,000, then the spouse will inherit the entire estate
  • If the estate’s worth exceeds $150,000 (excluding household goods), the spouse will inherit the $150,000 plus all the household goods, and 50% of the rest of the estate (if there’s one child), and 33% of the rest of the estate (if there are more than two children).

Ledwidge & Associates, P.C., is a leading legal firm that assists clients across New York with estate planning, Family Law Services Brooklyn and Family Law Attorney Queens, divorce, and probate law. If you require our services, get in touch with us today to schedule a consultation.

Executor’s Commission: What It Is & How It Works

For many, taking up the role of an executor of state would be something honorable. The position is often assigned to a family member or friend of a deceased person who was close and trustworthy to the deceased person. That being the case, the role used to be entirely voluntary and was not something you got compensated for. After all, it was something you were doing for a loved one who had passed away.

This, however, is no longer the case when dealing with estates. With estates and assets becoming more complex, as well as the laws that affect them, a payment for the executor has been established as a way to pay the person dealing with the process. This payment is referred to as an executor’s commission.

A signed document with a pen

How Much Commission Does an Executor Get?

Executor commissions and payments are usually not a pre-set amount. There are a few factors that come into play when deciding how much compensation an executor will get for their work. These often include whether a fee had been mentioned in the will, what percentage the state law says can be given as commission, and if a court decides to apply reasonable compensation, an hourly rate that seems fair for the work.

If there are more than one executors assigned to handling the estate, then the amount may either be divided amongst them, or both may get full and equal compensation, depending on the size of the estate itself.

Executor Payments in New York

For executors in New York, there’s a percentage calculation that usually ends up deciding how much commission an executor will get. Once the will has been looked over by a probate attorney and the estate and all its assets have been valued, you’ll be able to get a percentage of that amount as your commission.

State laws dictate that an executor will get a minimum of 5% if the estate is worth 100,000 dollars. The percentage then drops with each increase in amount, giving 4% on a total of 300,000 dollars, 3% on 1 million dollars, and then finally 2% on values of over 5 million dollars.

People in suits talk to each other

Executor Payments as a Beneficiary

If you’re the executor of an estate but are also one of the beneficiaries of the will, you must be smart about dividing up the payments. The inheritance you get is tax-free, but the commission you get is taxed.

To make sure you end up with the best possible outcome, you should get the help of legal professionals like Ledwidge and Associates. Along with their executor services, they have probate attorneys and estate law attorney Queens and estate law attorney Brooklyn who can help you speed the entire settlement process.

Debt and Probate: What You Need to Know

A sample of last will and testament with a section about debt payment.

Most people have their legacies, properties, and assets on their minds when drafting their Testament and Last Will. But several other things must be considered and specified in an estate plan.

For example, specifying what happens to your outstanding debts or those of a loved one after they pass away is crucial. If you owed a loan or debt in your lifetime, your family will be responsible for paying for it, depending on your estate’s size and value and the type of the loan.

Is it important to notify creditors?

After a person passes away, their estate executor is responsible for informing the person or institution that provided the debt. While the trust doesn’t mandate that the executors notify the creditors of the debtor’s passing away, doing so will allow the creditors to come forward within a shorter period, and the payment process will be smoother. Once the creditors are notified, they are given a specified period to claim their takings against the estate. Each creditor will be paid for their part from the estate’s proceeds.

If the deceased person didn’t create an estate plan during their lifetime, the probate court then assigns an administrator, who is typically from the immediate family or a close relative. Like a trustee or an executor, an administrator appointed by the court is also authorized to pay the deceased person’s debts from the estate’s takings.

What if two persons are responsible for debt?

A sample of last will and testament with a section about debt payment.

In most mortgage cases, couples usually apply together. In this case, the surviving spouse or loan co-signer will be responsible for paying the debts. However, the probate court considers several factors before determining that the living partner should be paying for the joint debts. In some cases, selling the estate is enough to repay all the deceased’s outstanding debts, while in others, loan providers may settle on an amount lesser than the original debt.

 

A loved one’s death isn’t only emotionally turbulent, but it often also brings complicated financial and legal issues with it. An experienced and reliable probate attorney Queens or probate attorney Brooklyn can help you through each step of the process, from contesting and probating the will to removing an executor or administrator, ensuring complete protection of your rights.

If you’re looking for an experienced probate attorney in Brooklyn, Queens, Manhattan, or other NYC areas, get in touch with the law office of Ledwidge & Associates, P.C. today!

Better Call Saul: Is the Show an Accurate Representation of Lawyers in Real Life?

Netflix logo on a TV

Saul Goodman, Attorney at Law, has long been people’s favorite on-screen lawyer—maybe only rivaled by the good old Denny Crane and Tom Hagen. The protagonist of the Breaking Bad spinoff, Better Call Saul, Saul is a quirky, witty, and level-headed on-screen lawyer.

As a fictional character representing a real-life profession, would Saul Goodman stand the test of time?

Most Accurate Legal Show on Television?

Viewers have been smitten with the on-screen portrayal of this attorney and his forays into “elder law”—and, later, with criminal law. But how accurate is this show, as far as the portrayal of lawyers is concerned?

a judge’s gavel

Surprisingly, Better Call Saul has been called the most accurate legal show on television. Real lawyers did sit down to watch the show and gave it an A- for realism. We at the Law Offices of Joseph A. Ledwidge, P.C. are inclined to agree. It’s a pretty great show for the following reasons.

Realistic Court Life

The courts in Better Call Saul aren’t the romanticized, glamorized, theatrical scenes for sensational drama. They’re monotonous, daunting, and quite frankly, kind of boring—as they are in real life. We also get to see Saul struggle in public courts as a public defender, surviving pay cheque to pay cheque. It isn’t easy being a lawyer and dealing with public courts—and Better Call Saul does an excellent job of depicting that.

Realistic Jury-Working

Part of what makes Saul Goodman so good is his prowess with convincing anyone with his words. Saul opens his defense with the masterful working of the jury: starting with the bad, and quickly leaving them behind. His focus is on depicting his clients as humans capable of erring—and capable of learning from their mistakes. Real-life attorneys, too, do focus on humanizing their clients.

Realistic Elder Law

In the show, Saul Goodman starts off as someone who helps seniors make their wills—kind of like a probate lawyer, just not as extensive in scope. While his dealings with these seniors are fun and, at times, hilarious, the whole Sandpiper case is also very realistically portrayed. For those who haven’t seen the show, Sandpiper is a large senior care facility overcharging its clients without their knowledge. When Saul finds out he turns it into a case of fraud, and is able to pursue it—over several seasons. And that’s what makes it accurate. Legal negotiations take a long time to work out—it’s a bureaucratic process. Life doesn’t work like Primal Fear courtrooms and back alleys.

Looking for a Real-Life Lawyer Working Elder Law?

If you’ve been interested in family law, elder law, or probate services after watching this excellent show, you can reach out to us at the Law Offices of Ledwidge & Associates, P.C. online. We offer Family Law Services Queens, Family Law Services Brooklyn and in other areas of New York.

And don’t worry about the dividing of your estates, chalking up of your will, or answering your beneficiaries. Like Saul Goodman so often says: ‘s all good, man. Better Call Us!

 

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.

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.

 

Common Social Media Blunders to Avoid During Divorce Proceedings

Social media has been one of the most popular technological breakthroughs of the 21st century. Since 2004, it has grown steadily in popularity and number of users both. Social media platforms have now become a major source of information and news and provide a unique way to interact with people such as friends, family, customers, and more.

A smartphone screen with icons for popular social media platforms

According to statistics, there are over 3.5 billion social media users around the world. A huge percentage of the population in the United States is active on various social media platforms. However, not everyone uses social media as it has been intended, and many people end up making mistakes that cost them their jobs, reputation, and friends.

People going through divorces also make huge errors in judgment while using social media, and their blunders allow their ex to gather evidence that is used to manipulate the courts and get the better end of the deal.

Here are some of the most common social media errors made by people while getting a divorce:

Divulging Private Information

According to social media statistics, the average person spends up to 3 hours on various social media platforms every day. That is a long time, and it can be quite easy to slip up and start talking about the divorce and how the proceedings are going and what strategies you are using to make sure you get a good deal. However, this information can be used by the other party in court. Even if you are sharing information on private groups among trusted friends, there are plenty of ways your ex can get their hands on the conversations and comments. You should take a cue from celebrities and only make bland statements that offer no specific information.

Alt Text: Defamation law book and gavel on a table.

Talking About the Divorce or Disparaging Your Ex

During the divorce, emotions run quite high, and it can be tempting to blow off some steam by disparaging your ex on social media. That is a huge mistake and can be used in court to show your character and build a negative image of you as a toxic person. The information can also be used to file a defamation suit against you. Whatever you have gone through recently, no matter how badly your ex treated, it is best to refrain from commenting about it on social media.

Showing Off or Trying to Prove You’ve Moved On

Many people going through the divorce make bold statements on social media to prove that they have moved on, and they are in a better position than their ex. They make announcements of their good fortune, particularly if they have met someone new or just got a better job.

While its natural to want to share your happiness, statements like these can influence certain issues during the divorce, such as division of assets and child support.

They can also lead to claims of infidelity if you post that you are in a relationship, especially if the divorce hasn’t been finalized yet. It is usually best to err on the side of caution and avoid posting about your personal life on social media until the end of the divorce process.

Get Expert Legal advice from Leading Divorce Attorneys in New York

Don’t get lost in the complex legal labyrinth of divorce laws in New York! The law office of Ledwidge & Associates, P.C., offers the services of leading divorce attorneys in Brooklyn, Manhattan, the Bronx, Queens, and Long Island. They can help you protect your rights and provide both contested and uncontested divorce representation.

Schedule a free phone consultation today by calling us at 718-276-6656 and discuss your case with experienced divorce attorneys in New York!

Naming Beneficiaries on Life Insurance While Having a Trust in New York

Many people consider creating a trust either to complement their will or in place of a will. There can be several tax benefits to using a trust for certain types of assets, as well as avoiding hefty inheritance taxes and estate taxes.

If you are considering creating a trust in New York, there are several key things you need to know about naming beneficiaries on life insurance, 401(k)s, IRAs, and other such financial accounts with named beneficiaries.

To begin with, there is a difference in how insurance policy beneficiaries can be named, depending on whether you want to create a revocable living trust or irrevocable living trust. In a revocable living trust, the grantor of the trust can continue to make changes and update the trust until their death. They also can draw distributions from the trust.

In an irrevocable living trust, once it is established, it cannot be updated, changed, altered, or modified without the beneficiary’s or beneficiaries’ permission. All rights and claims the grantor previously held to the assets moved into an irrevocable trust are given up.

Revocable Trusts and Naming Beneficiaries on Life Insurance

Business photo showcasing money that is being held by the trustees for the beneficiaries

If you want the proceeds from your life insurance to go directly into your revocable trust, then you need to update the policy to name the trust as your primary beneficiary. There is no need to add secondary beneficiaries since you have a trust.

On the other hand, let’s assume you wanted your wife to have access to the life insurance proceeds immediately, without having to wait for a distribution from your trust. Then you would want to name her as the primary beneficiary and your trust as the secondary beneficiary. This way, if your wife passes away before you do, then the proceeds go directly to your trust upon your death. 

Irrevocable Trusts and Naming Beneficiaries on Life Insurance

The process of naming beneficiaries on life insurance policies with irrevocable trusts is similar to that of revocable trusts. You could list your trust as the primary beneficiary. Then the person designated as the beneficiary of the trust would receive the proceeds from your life insurance.

You could also list a person as the primary beneficiary and the trust as the secondary beneficiary. If the primary beneficiary is still alive upon your death, then they receive the proceeds from the life insurance policy. If they are also dead, then the proceeds are transferred to the trust and the beneficiary of the irrevocable trust.

What About Naming Beneficiaries on Other Types of Accounts?

For any type of account where you name a beneficiary, like a 401(k), IRA, savings account, etc., you would want to list your trust as the primary beneficiary when you want the proceeds to be transferred directly into the trust.

Or, if you wanted all or some of the proceeds to go to a named beneficiary, then you would list them as the primary beneficiary or stipulate the percentage they would receive upon your death. You would list your trust as secondary or as a co-benefactor and what percentage should be transferred into the trust.

What if I Named Beneficiaries of My Life Insurance in My Will Too?

Senior couple planning their investments with financial advisor

The New York State Probate Process would ensure that the beneficiary or beneficiaries named in your insurance policy received the proceeds regardless of the beneficiaries you named in your will. If you named your trust as the beneficiary, then the trust would receive the proceeds.

For further questions about revocable and irrevocable trusts, naming life insurance beneficiaries, and naming beneficiaries on 401(k)s, IRAs, and other financial accounts in Queens, Brooklyn, Manhattan, Jamaica, or New York City, please feel free to contact New York probate attorney, Ledwidge & Associates, P.C. at 718-276-6656 today! 

Does New York State Probate Law Allow Vacating of a Probate Decree?

One question that can arise as a result of the will probate process in New York is whether New York State probate law allows for the vacating of a probate decree. The purpose of the probate process is so the probate (surrogate) court and the assigned judge can review the will to determine whether it is valid and ensure that the complex process is adhered to correctly.

Last Will and testament document with pen

During the probate process, there are specific things that must occur. Among those, the executor of the estate is named. Another thing that must occur is the next of kin must be contacted and given ample time to consider any objections to the will left by the deceased.

During the probate process, the court will issue a probate decree, along with testamentary letters. Yet, there are certain circumstances where, after the decree has been issued, specific parties may decide they want to seek a motion to vacate the probate decree.

What Does Vacating a Probate Decree Mean?

While vacating a decree is rare, it is still allowed under New York State probate law. There can be circumstances that arise after the probate decree was issued or other reasons that occur during the probate process.

To illustrate, let’s assume you were listed as a beneficiary on your uncle’s last will and testament. During the probate process, you were not notified by the executor that you were named in the will. You later discover from another relative that you were named in the will after the probate decree was issued by the court.

Since you were not properly informed by the executor, you could file a motion to have the probate decree vacated with help from a New York probate attorney. The court would then review the grounds for the motion and, if they agree, then the decree is vacated.

Essentially, once a decree is vacated, it is no longer valid. The probate process is reset, and the process returns to the point before the decree was issued.

Judge Holding Documents

Another case where one may wish to file a motion to vacate a probate decree is if they believe the will is not valid. For instance, in the Matter of Estate of Thompson, the New York Surrogate Court received a request from beneficiaries of an earlier named will for a motion to vacate the probate decrees on the most recent will submitted during the probate process.

The parties believed that the earlier will from 2008 was valid and the one written in 2016 was not valid. They further felt the deceased’s 2016 will was written at a time when the now-deceased was suffering from a serious illness and incapable of making genuine decisions. The court did grant the motion to vacate the probate decree.

This allowed the parties time to present further information to challenge the 2016 will’s validity. Upon review by the court, it was discovered that there were a combination of different factors that led the court to conclude there were doubts about the authenticity of the 2016 will.1

Vacating a probate decree in New York is just as complex of a process as probating a will. If you believe you have grounds to file a motion to request a vacating of a decree in New York City, Queens, Manhattan Brooklyn, or Jamaica, NY, please feel free to contact probate attorney Joseph A. Ledwidge, P.C. at 718-276-6656 to schedule a consultation appointment today. 

Source:

  1. https://www.law.com/newyorklawjournal/almID/1535443189NY4297D201/?slreturn=20200117142820