Probating a Will in New York

Signing Last Will and Testament

The probate process in New York is the legal procedure in which the assets of a person who is deceased gets distributed under court supervision. If the individual dies with a will the will will contain a clause naming an executor and if the executor is not available an alternative executor to supervise and control the probate process. If the individual dies without a will said individual’s spouse, a child or next of kin can bring an application to become the administrator of this deceased individual’s estate. Once appointed the executor or administrator of the estate has legal authority to organize, gather and value the assets of the decedent. In addition, he or she can pay bills, pay real estate taxes, federal and state income taxes and at the end of the estate process distribute the assets to the next of kin or the beneficiaries under the will.

Why Probate the Will?

The purpose of the probate process is to prevent fraud or improper actions regarding the assets of the decedent. It is the intent of the probate process to freeze the estate assets until a judge determines whether the will is a valid will and that all of the necessary individuals regarding the estate have been put on notice there are assets in the estate and they may have an interest in said assets. In addition, creditors must be notified and paid all taxes have to be paid before there can be distributions to the beneficiaries or the heirs of the estate.

Assets Not Part of the Estate

Bank accounts, investment accounts and other assets maintained in joint tenancy or in Attorney Elliot Schlisseljoint tenancy with rights of survivorship do not pass through the estate and/or probate process. In addition, accounts that have pay upon death designations or beneficiaries listed in them also do not pass through probate. Life insurance policies and most annuities are also dealt with outside the probate process.

Estate Problems

Should you have questions or issues regarding estate matters you can reach the law office of Schlissel DeCorpo LLP for a free consultation at any of our offices to discuss these problems. Our phone numbers are 516-561-6645, 718-350-2802 or 631-319-8262.

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Guardianship of a Child with Special Needs

Picture of a courthouse

In the State of New York children are considered adults when they reach the age of 18. All children are considered legally competent and capable of making decisions for themselves independently at 18 years of age. However, if you have a child with special needs you may be aware your child’s disability may never allow him or her to be a legally competent adult. In the State of New York no matter how severe your child’s disability is, you will need to take legal action to have a guardian appointed for your child after they turn 18. In addition to parents appointing themselves as guardians of their children, it is also recommended they appoint successor guardians in the event of the parents’ disability or death. Successor guardians are an important component of the guardianship process because children generally outlive their parents.

Guardianship Proceedings in New York Surrogate’s Court

In the State of New York guardianship proceedings for children who turn 18 are usually brought in the Surrogate’s Courts. The procedure is pursuant to New York Surrogate’s Court Procedure Act 17-A. The parents must produce documentation of the disability of their child. This can be done by submitting affidavits from the child’s physicians. The application to the court must also explain to the court the child would not be in a position to manage his or her own affairs. After the application is brought to the court, the court appoints an attorney to the represent the child. This attorney will usually investigate the child’s circumstances and ascertain the truthfulness contained in the parents’ petition. The guardianship proceeding should be part of the planning for the child’s long term care. The guardianship application should be brought long before the child turns 18 years of age. Guardianships are not simple proceedings. It is highly recommended that you retain a guardianship law firm familiar with the needs of special needs children to represent you in these proceedings.