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 A will can also be invalidated if it’s outdated, and a more recent version of it exists or if it isn’t compliant with the state laws.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.

Questions for a Probate Attorney: How Does the New York Probate Process Work?

The New York probate process will vary, depending on whether the deceased had a will or trust or had no such documents expressing their last wishes. After someone dies, their assets, property, and other belongings, which are called their estate, have to be distributed to surviving loved ones, called heirs.

In addition, any outstanding debts must be paid. There are also estate taxes that have to be paid. To accomplish this, the probate process is used in New York through what is called the Surrogate Court. The role the Surrogate Court plays in the probate process will vary, depending on the documentation or lack thereof the deceased had.

Business man pointing the text: What Are The Rules?

Ultimately, their primary role is to oversee the estate and approve distributions to the appropriate parties. Before any distributions can be made to charities and surviving loved ones, the estate must first pay outstanding debts and estates taxes.

If the deceased had a will or trust, then they should have named an estate executor. This person is responsible for performing specific tasks to distribute the estate. They will obtain permissions from the Surrogate Court as needed throughout the probate process.

If the deceased did not have a will or trust or did not name an executor, the Surrogate Court will appoint an estate administrator. The administrator has similar responsibilities as an executor. If the surviving loved ones do not believe the estate is being handled correctly, there are specific legal actions they can take, such as contesting a will or requesting the removal of the executor.

What Steps Are There in New York Probate Process?

In general, there are three basic steps in the New York probate process, as follows:

Step 1: Inventory and Appraise the Estate

The executor will need to review the deceased’s assets. They have to make an inventory of all property. Afterward, they must assign a monetary amount to each item, which could require expert appraisals. The overall objective is to determine how much the estate is worth.

Step 2: Satisfy Outstanding Debts and Pay Taxes

The next step is to pay any outstanding debts the deceased owed. This could include loans, credit cards, and other financial obligations. The executor will also pay estate taxes owed. If there is not sufficient cash to pay all debts and taxes, the executor can liquidate assets to ensure they are paid.

Step 3: Distribute the Remaining Estate to Heirs

If there is a will, then the executor makes distributions based on the last wishes of the deceased. In some cases, where assets had to be liquidated, the heirs may not receive the assets or property promised in the will.

If there is a trust, the probate process will vary slightly, depending on the type of trust the deceased had. If there was no will or trust, then the court-appointed administrator takes care of each of these steps.

senior adults discussing important topic

Please keep in mind, this is just an overview of the process. New York State probate rules, the size of the estate, and other factors that could require additional steps are not covered here. Nor should the information presented here be considered legal advice. This is why it is important to make a list of questions for a probate attorney to get the answers and legal advice you need.

A probate attorney can also help with the execution of a will or trust, as well as provide guidance for the executor during the probate process. For further legal advice and assistance with the New York probate process, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!