After a Loved One Passes

Losing a loved one can be an extremely difficult experience. In some situations after your loved one passes, their next of kin is called upon to supervise the estate of the deceased. After the funeral takes place, the individual charged with handling the estate of the deceased has to first find the assets and gather them together within the confines of the estate. Thereafter he or she must pay creditors and authenticate who the beneficiaries to the estate are. If the decedent wrote a will, the process begins by probating the will.

The Probate Process

The first step in the probate process is to locate the original Will and file the Will with the Surrogate’s Court located in the county where the decedent resided before his or her death. In addition to filing the Will, a probate petition must accompany the Will. If the court accepts the probate petition, the case will be placed on the court’s calendar. The beneficiaries and next of kin will need to receive notice of this upcoming court date. On the return date of the probate petition, if there are no challenges to the will, the court will render a decision authorizing the executor named in the Will to be appointed to fulfill the terms and functions of the Will. The executor will determine the assets of the estate and gather them together. These assets may involve selling real estate, liquidating bank accounts, stocks, bonds and mutual funds, and various other types of assets. If there are expenses related to the decedent’s final illness, these expenses must be paid. Tax returns for the year in which the decedent died must be filed and if taxes are due, they must be paid. If the estate is a large estate, there may be estate taxes due and owing. At the end of the probate process the executor must prepare an accounting of the assets received, the payments which have been made to creditors, and lay out the scheme for the payment of the balance of the funds of the estate to the beneficiaries named in the Will.

No Will Causes Administration Proceedings

Administration proceedings are similar to probate proceedings, however they are a bit more complicated. Since no one has been named by the decedent to handle his or her estate, the next of kin and/or other family members may approach the court and seek to be named the administrator of the estate. This sometimes causes disputes among those individuals who seek to control and administrate the decedent’s estate.

In both probate and administration proceedings, family members who don’t feel they received their fair share of the estate sometimes come forward and challenge the estate proceeding.

Dealing with Estate Issues

I would not recommend an executor or administrator try to handle either the probate of a Will or the administration of an estate without the guidance and legal representation by an experienced estates attorney. If the administrator or executor makes a mistake, he or she can be personally liable for financial damages. The cost of hiring an attorney to represent the estate are paid by the assets in the estate, not by the funds belonging to the administrator or executor.new york estates attorney

Wills Litigation

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Executors and Estates

The individual named as the executor in a Will is entrusted with the assets of the individual who drafted the Will after the individual dies. The executor has responsibilities with regard to administrating the estate, accounting for its assets, paying taxes, distributing the assets of the estate, and dealing with a variety of other issues. Executors responsibilities have not changed in recent years. However, the responsibilities have become more complicated.

New Problems for Executors

In the past an executor would go to the decedent’s home, look for documents concerning assets, try to ascertain whether there was a safety deposit box, and by and large was usually able to locate documents that enabled him or her to determine what the assets of the estate were. This is no longer the case today. Many individuals maintain all of their financial documents online. An executor will usually not know the password or user names which would enable him or her to be able to get into these accounts. Obtaining access to a decedent’s digital information has become a major problem facing executors.

Easing Burdens and Responsibilities of Executors

The best way for an executor to ease his or her burdens is to hire a law firm which has a team of attorneys, accountants, paralegals, and other individuals who can help him or her carry out the responsibilities of an executor.

The following are a list of some of an executor’s responsibilities:

  • Probate the Will. The executor needs to find the Will, hire an attorney, and see to it that the Will is probated.
  • Collect assets. The executor must identify, collect, value and manage and safeguard all of the estate’s assets during the period of time the probate proceedings are making their way through the courts. This can include bank accounts, stocks, bonds, items in safety deposit boxes, household and personal effects, as well as out of state property, out of country property, digital assets and other items such as the decedent’s interests in other estates, trusts or litigation pending in the courts.
  • Filing tax returns. The executor must prepare and file all necessary estate tax returns.
  • Pay the debts and expenses of the estate. The executor must determine who the creditors of the estate are and see to it they are paid.
  • Distribution at the end of the estate. The executor must see to it the assets are appropriately distributed pursuant to the terms of the Will.

Conclusion

Executors have numerous responsibilities which should be taken seriously. These responsibilities in the digital age have become more complicated to carry out.attorney for the executor of an estate

Estate Litigation

estate litigation lawyerWhen someone dies their assets become the property of their estate. If the person who dies has a will, the individual in charge of carrying out the terms of the will is called an executor. The will names the person who will serve as executor. The will usually names an alternate executor if the first named executor is unable to serve.

Will Disputes

Sometimes there are disputes among loved ones, friends, and/or family members regarding issues involving the preparation of the will and/or the terms of the will. When disputes occur between beneficiaries or heirs regarding the terms of a will, a spouse’s right to inherit or issues involving the actions or lack of action of the executor, these disputes can result in estate litigation.

Amicably Resolving Estate Issues

Initially attempts should be made to amicably resolve all disputes to avoid an estate litigation lawsuit. Estate litigation will delay the beneficiaries’ receiving what they are entitled to under the terms of the will. It will also create extra expenses for the estate and other interested parties.

There are a variety of types of litigation which can occur in an estate. The following are a list of some of these types of litigation:

  • A will contest. This can involve a challenge to set aside the will. The grounds can be that the will was not properly executed. There can also be allegations of fraud, duress, lack of competency to make the will, undue influence, allegations the will was not properly signed, allegations the will is a forgery, and/or the will is not clear in its terms.
  •   Breach of fiduciary obligations. Executors of wills, trustees of trusts, and administrators of intestate estates (estates where there is no will), are all fiduciaries. They have an obligation to act in the best interests of the estate and are held to a very high standard concerning their actions. Fiduciaries can be removed for failure to properly act regarding the assets of the estate, mismanaging the assets of the estate, improperly taking the assets of the estate, and other reasons related to negligence or improper actions.
  • Challenges to trusts. If the terminology of the trust is not clear, legal action can be taken to deal with this issue.
  • Claims against estates. Lawsuits can be brought by creditors concerning money owed by the decedent to the creditors.
  • Wrongful death claims. Litigation can be brought by family members against persons, corporations or other entities who caused the death of the decedent. This can also include actions for medical malpractice. The proceeds received from wrongful death claims and medical malpractice awards become assets of the estate.
  • Accounting proceedings. These are proceedings initiated to force a fiduciary to produce financial information with regard to how the estate’s assets, investments, tax issues and expenses were dealt with during the term the executor managed the estate.
  • Guardianship proceedings. When parents die without leaving a will, or become unable to care for a child during their lifetime, guardianship proceedings become necessary to appoint a relative or other family member to take care of the child during the term of the child’s minority. Guardianship proceedings can also be brought for special individuals who may never become competent to take care of themselves. Guardianship proceedings can also be brought on behalf of seniors who develop infirmities with age and are unable to take care of themselves or their finances.estate litigation attorney on Long Island and New York City

Naming An Executor In Your Will – Part II

There are a number of duties and responsibilities an executor has. Here is a list of some of these duties:

  • resolve disputes among family members;
  • handle funeral arrangements for the deceased;
  • preserve, collect and value the estate’s assets;
  • cooperate with the attorney for the estate in preparing and filing appropriate documents with the Surrogate’s Court;
  • paying the debts of the decedent and the expenses related to the estate administration;
  • distribute the assets to the appropriate beneficiaries named in the will;
  • prepare an accounting with regard to the income and assets of the estate; and,
  • prepare and file tax returns when necessary with state and federal governmental authorities.

Conclusion

An executor is a fiduciary who has a lot of responsibility concerning financial matters. The best way to deal with these issues is to hire a knowledgeable, trustworthy, estates lawyer to assist you, guide you, and see to it the estate is properly handled.

estate planning attorneyElliot Schlissel and his associates have more than 100 years of combined legal experience representing clients with regard to all aspects of wills, trusts, and estate matters.

Naming An Executor In Your Will – Part I

estate planning lawyerThe executor of a will is the person who is in charge of handling your funeral arrangements, paying the bills which accrued prior to your death or related to your funeral, gathering your assets, filing tax returns when appropriate, and seeing to it your assets are distributed to the appropriate beneficiaries pursuant to the terms of your will. So who should you name as your executor? If you are married and your wife or husband is competent and dies after you, they would be the logical person to name. If you have children, you can name one or more of your children as alternate executors in the event your spouse should predecease you or perish with you in a common disaster. If you don’t have a spouse or children, you can name a brother, sister, friend, loved one, attorney, accountant, priest, rabbi, minister or any other person you believe to be of high moral caliber and would carry out the duties as your executor. Banks and trust companies can also, under certain circumstances, be named as either the executor of your will or the trustee of a trust.

Attorney For The Executor

The most important thing the executor does in most estate circumstances is hire an experienced, available attorney to act as the attorney for the executor. The attorney for the executor, guides the executor through each and every aspect of his or her duties and sees to it that all aspects of handling the estate are properly undertaken and accomplished.

If You Don’t Have A Will Or You Don’t Appoint An Executor

If you do not name an executor in your will, one will be appointed by the Surrogate’s Court. If you don’t have a will, individuals in your stream of inheritance under New York State law can apply to the court to be named as the administrator of your estate. One point regarding an executor is, you should name someone who is willing to serve. In the event your executor declines to serve or is unable to act in that capacity, it is important your will names an alternate executor.wills and trusts attorney

Litigating Issues Involving Wills And Other Assets Taking Advantage Of The Elderly and Infirm – Part I

estate litigation attorney in New YorkIn some societies as parents and other loved ones grow older, the level of respect and help provided to them by their children and other loved ones increases. Sometimes, however, loved ones who are sickly or suffer from Alzheimer’s disease are taken advantage of for financial gain. Examples of inappropriate actions where individuals seek to enrich themselves are:

  1.  where an elderly father has dementia or Alzheimer’s disease, and a child or second wife is added to the bank account which was meant for other family members.
  2. an individual ingratiates himself or herself and takes the sickly father to a lawyer’s office to make a will cutting out other family members from inheritance.
  3. the changing of a will by a senior disinheriting a favorite child or children and leaving all of the assets to another child or someone else shortly before their death.
  4. a caregiver who ingratiates themselves to a sick, elderly person for the purpose of becoming the beneficiary of bank accounts or other assets contained in their will.

Experienced Estates Attorney

Hiring an attorney experienced in litigating issues like those referred to above can be the first step in successfully setting aside these transactions. Immediately upon realizing there has been something inappropriate which took place with regard to the assets of a loved one, you should seek out an experienced estates attorney to represent you. You may not find out about these transactions until after the individual dies. It is not too late to take action, at that point, to set aside transactions prior to death involving bank accounts, securities, or wills.

There are a number of issues which can be raised to successfully challenge wills, trusts and joint bank accounts.estate planning lawyer

Executor’s Duties

elder law attorneysThe duties of an executor involve dealing with issues concerning a dead individual’s property. The executor pays the decedent’s debts and taxes. He or she sees to it that the assets are given to the individuals named in the will.

Fiduciary

An executor is a fiduciary. The executor has a duty to act with a high degree of good faith and honesty concerning the handling of an estate.

Duties of an Executor

  • Locating the decedent’s assets and managing them until they are distributed to the individuals who inherit under the will.
  • Probating the will. In New York State wills must be probated in the Surrogate’s Court. The probate process involves the court accepting the will as being valid.
  • The handling of day to day issues involving the deceased assets. This involves notifying banks and government agencies, such as Social Security, Medicare and the Department of Veterans Affairs of the decedent’s death. It also may involve paying debts and liquidating assets such as the sale of real estate or stocks and bonds.

Attorney for the Executor

The executor hires a lawyer to deal with the legal issues involved in probating the will and distributing assets. The lawyer representing the estate is actually the attorney for the executor and not the attorney representing the beneficiaries. If the beneficiaries desire they can retain their own lawyers to represent them and protect their interests in the estate proceeding. If the will is challenged, the attorney for the executor litigates the challenge to the will in the Surrogate’s Court. If you are named as an executor feel free to call us to discuss your responsibilities and how we can help you!

probate lawyerElliot Schlissel is a member of the National Academy of Elder Law Attorneys. He has been representing individuals in wills, trusts and estate cases for more than 35 years. Elliot and his staff of attorneys provide high quality legal representation regarding all types of estate litigation throughout the Metropolitan New York area.

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