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.

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!

3 Key Reasons You Should Create an Estate Plans for Your Future

When we talk about estate planning, many people immediately associate it with the ultra-rich. However, contrary to popular belief, anyone can benefit from having an estate plan no matter what their net worth is. According to Forbes, only 42% of the adults in the United States currently have an estate plan such as a living trust or a will.

A note on paper with a fountain pen

While end-of-life planning can be depressing and seem morbid, it is essential to protect you, your assets, and your loved ones after you die. If you haven’t started drafting your estate planning documents yet, consider the following reasons why it is essential to talk to an estate law attorney as soon as possible to get the process started:

Avoid Complications

If a person dies without an estate plan, the matter of distribution of assets is passed on to the courts who handle everything from the distribution of the property, the dissolution of the business, and the guardianship of the children. The process is known as probate, and it can get seriously complicated and expensive. By preparing the documentation in advance, you can save your family and loved ones from numerous complications and legal issues after your death.

A parent walking with their child on a beach

Keep Your Children from Ending Up in Child Protective Services

It might be unpleasant to think about your death, but it is essential to take some time and consider what would happen to your children if you suddenly died. Where will they end up? Who will take care of them?

If you don’t have an estate plan that clearly mentions a guardian that you have chosen, your children will end up with Child Protective Services, while the courts decide the best candidate to be their legal guardians. The process can take a long time, and your kids could end up with someone who would be your last choice for a guardian. Staying with protective services for a long time can also have a negative emotional impact on your child during a very vulnerable time in their life.

Avoid Disputes

Not everyone cares about what happens to their wealth and assets after they have passed. However, not leaving an estate plan can result in huge disputes between family members regarding who gets what. This can create strong feelings of ill will between relatives and even break up families. By planning your estate documents, you save your family from making difficult decisions and eliminate the risk of any disputes by making the decision for them.

Get Legal Advice from Leading Estate Lawyers In New York

One of the best ways to avoid complications with your estate after your death is to hire an experienced estate lawyer to draw up the correct documents for you.

Ledwidge & Associates P.C. offers the services of leading estate law attorney Queens, estate law attorney Brooklyn, Manhattan, Long Island, and the Bronx. We can help you protect your assets from exorbitant inheritance tax and ensure that your loved ones will be well taken care of through living wills and detailed estate planning documents.

Schedule a free case evaluation by calling us at 718-276-6656 and let us help you plan for your future!

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.

 

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.