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!

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.

How to Administer an Estate

In the period of time following the passing of a loved one, it can be difficult to know exactly how to proceed. This is especially true of following probate procedure and administering an estate, which can be a complex and lengthy task if there the decedent held many assets or claims are disputed.

Administering the estate in the correct manner is essential to ensure the wishes of the will are met, state and federal trust and estate laws are followed, and everyone receives their fair share of an inheritance. In this guide, we’ll talk you through the basic steps of probate and estate execution.

Appointing an Executor

The executor is the person tasked with dealing with the bulk of the estate administration. They will identify and catalog the deceased’s assets, pay off outstanding debts, finalize tax payments, and ensure distribution is in accordance with the will.

Choosing an executor is almost always the first step once the probate process has begun. If one has not been explicitly named in the will, then they will be chosen by the court. In most cases, the court-appointed executor will be the surviving spouse or closest relative.

the word probate on a stamp

The Next Steps

Once an executor has been appointed, it will be their duty to carry out the following steps. As probate law varies from state to state, the order and timing may vary slightly. In general, however, administration is carried out in the following order:

• Location of Assets – All assets, including real estate, money, stocks, and possessions must be recovered and inventoried. Note that some assets won’t go through probate, such as properties held in living trusts, joint bank accounts, life insurance payouts, and retirement funds with beneficiaries.
• Assessment of Value – The executor must then determine, usually through a third party, how much each asset was worth at the time of death. Many states require that this final inventory of assets be submitted to the court, along with how the values were reached.
• Notification of Creditors – All creditors of the decedent must be identified and notified to determine final debts owing. An advertisement in the newspaper is usually placed to alert creditors who would be otherwise unknown to the executor.
• Settlement of Debts and Taxes – All debts are paid off with the assets of the estate, liquidating physical property as necessary. Estate taxes will also be paid if required by the state.
• Finalization of Tax Returns – The executor will file a final tax return for the deceased, for their personal income during that year.
• Distribution of Estate – Finally, any remaining assets will be distributed to beneficiaries according to the will. Any assets left to minors may need to be placed in trust, which the executor will also have to oversee.

sign for your house

Legal Complications

While attempts have been made to streamline estate administration—the most notable being the Uniform Probate Code—this process is not always as straightforward as it may seem. Difficulties can arise if:

• The will is contested
• The deceased is intestate (i.e., does not leave behind a will)
• Debts cannot be fully repaid
• The assets are especially complex or located in other states

Comprehensive estate planning is crucial to avoid these costly, time-consuming, and often emotionally taxing complications. Without the right estate attorney, there’s no guarantee that an estate will be handled the way it was intended to be.

Is your estate in the right hands? If you want to be sure, or if you have any questions about administering a loved one’s estate, you need an attorney who will put your needs first. Contact Joseph A. Ledwidge PC at (718) 276-6656 for a free phone consultation.