Administrator of Estate Removed

In a case before Surrogate Melinda Malaze-Gonzalez, who sits in Bronx County New York, a son who was co-administrator of an estate asked the court to remove letters of administration issued to his sister, the decedent’s daughter. It should be noted the co-administrators were the brother and sister and the sole beneficiaries of the estate.

The Estate Had Real Estate Assets.

The primary assets of the estate were real estate holdings. The brother and sister had entered into a stipulation. The stipulation called for each on them to be co-administrators of the estate of their parent. The court granted letters of administration to both the brother and the sister. There were restrictions in the letters of administration concerning the real estate owned by the decedent.

Brother Seeks To Remove His Sister

The brother brought a legal action seeking to remove his sister as the co-administrator of the estate. The sister failed to retain an attorney to oppose her brother’s proceeding to have her removed. Justice Malaze-Gonzalez found the son’s allegations were not in controversy. She also found the sister’s refusal to take necessary steps to collect and distribute the estate’s assets was in violation of her fiduciary obligations. In addition, Judge Malaze-Gonzalez found a failure to state any reason why the assets of the estate should be retained constituted the basis of granting the son’s application to have her removed as the co-administrator due to her failure to understand what her fiduciary duties were.

schlissel-headshotElliot S. Schlissel, Esq. is an estate’s lawyer. He represents individuals probating wills, challenging wills, filing intestacy proceedings and all other estate related matters throughout the Metropolitan New York area. He has been helping his clients for more than 3 decades in these endeavors. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Probate Issues

New York estates attorneyAn estate proceeding was brought in Queens County, New York before Surrogate Peter Kelly. In this case the executor, the son of the decedent, asked that his mother’s 2012 Will be probated. The sister had objected to the probating of the Will. She alleged in her application before Judge Kelly that her mother lacked testamentary capacity, there was a mistake, and that the Will was not properly executed.

The Judge’s Decision

Justice Kelly examined the proof submitted concerning the son’s application to probate the Will. He found the attorney draftsman had announced in the decedent’s presence to the other subscribing witnesses the decedent was executing a Will and this was sufficient to satisfy the requirement of an expressed declaration by the decedent that this was her Will. He also found that at a deposition the attesting witnesses established the decedent had the appropriate testamentary capacity to execute a Will. Justice Kelly concluded that the Will was properly executed by the executor’s mother. He also found she had the appropriate capacity to prepare a Will. He dismissed the objections made by the mother’s daughter.

The daughter claimed the instrument was executed by her mother as a mistake because she didn’t understand the contents of the Will. Justice Kelly found these objections made by the decedent’s daughter were “essentially nonsensical”. He went on further to state that a Will, when properly executed, will not be denied to be probated. He found the terms of the Will had to be construed as they were written in the Will. His decision stated “what the testator has done, not what she meant but failed to do is to be given effect.” He granted the petition for probate made by the son and dismissed the cross-petition challenging the probate of the Will made by the decedent’s daughter.Long Island Wills and Estates lawyer

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

Revoking a Will

wills and estates attorneyGerace brought a petition to probate a Will. The decedent’s mother in this case filed objections in this proceeding. She claimed the Will had been revoked 4 years after it had been executed. The decedent had written on the top of the Will “worked to revoke it.” Gerace claimed this was a revocation of the Will. Surrogate Louis Gigliotti sitting in Oneida County noted the Will was handwritten and on top of the Will was the handwritten notation referring to a “new” Will. Gerace took the position that he was the decedent’s attorney from 1995 until her death. He saw her at least twice annually, but at no time did she indicate she wanted to make a new Will or revoke the prior Will.

The second issue presented to the court was did the decedent’s actions cause the cancellation of the Will. The court took into consideration there was no burning, tearing, cutting or mutilation of the Will. Judge Gigliotti took the position that in the event the words on top of the Will were written by the decedent, those handwritten notes on the Will did not act to revoke the Will. Surrogate Gigliotti stated that for the decedent to have written a new Will or modified the old Will, the new Will or the Will modifications would need to be done with the appropriate testamentary formalities. Since the testamentary formalities were not undertaken in this case, the decedent’s actions did not cause the revocation of the prior Will and the Will should be admitted to be probated.

Conclusion

Should you wish to withdraw or modify or revoke a Will, hire an attorney to take the appropriate action to write a new Will and cause the revocation of the prior will. New York State requires testamentary formalities with regard to the execution and/or revocation of Wills and those testamentary formalities must be correctly adhered to.wills attorney in New York

Handling An Estate in a Nutshell

estate administration attorneyAll human beings that live will eventually die.  When a loved one passes, dealing with his or her estate is not a task most people look forward to.  However, most people will, during the course of their lifetime, be involved with estate issues concerning a loved one.

When the grief passes, the issues involved are who are the heirs of the estate, what are the assets, how are they distributed, and what creditors need to be paid, become issues in the decedent’s estate.  If the individual dies with a Will, the process to validate the Will by the Court is called PROBATE.  If an individual dies without a Will, the process of determining who will inherit from his or her estate is called ADMINISTRATION.  If there is a Will, the Will will appoint an executor.  It will be the executor’s responsibility to hire an estates lawyer and to take the appropriate legal action regarding the estate.  If there is no Will, an individual who is next of kin to the decedent can ask to be appointed the administrator of the decedent’s estate.

Legal Work in the Estate

If you hire an attorney, he or she will draft a probate petition or a petition for the administration of the estate.  The petition will thereafter be filed in the Surrogate’s Court in the County in which the decedent was a resident of at the time of his or her death.

After the probate petition or administration petition is filed, next of kin and potential beneficiaries will be notified of a court date.  On that court date, any individual seeking to challenge either the appointment of the administrator in an administration proceeding, or the executor in a Will in a probate proceeding can appear in Court and advise the judge that he or she seeks to challenge the estate proceeding.

Executor’s and Administrator’s Duties

When the Will is accepted for probate, the executor or administrator’s duties are to find the assets, liquidate them, and obtain them for the benefit of the beneficiaries.  The technical aspects of handling the funds is usually dealt with by the attorney retained by the administrator or executor of the estate.  Assets of an estate can involve houses, money, stocks and bonds, insurance policies, jewelry, artwork, clothing and other personal items.

Real Estate Issues in Estates

If an individual owns real property outside of New York State (houses, land and other structures on land), an ancillary probate proceeding will be required to be undertaken in the State where the real estate is located.  Surrogate’s Courts in the State of New York only have jurisdiction over real property that lies within New York State.

Accounting of Assets Before Distribution to Beneficiaries

After all of the assets are amassed by the estate, and all of the creditors are paid, the administrator or executor thereafter needs to provide a simple accounting to the beneficiaries showing assets, liabilities and the amount which will be available to be distributed to the beneficiaries.

Fiduciary Responsibility

It should be noted an executor is a fiduciary.  In the event he or she makes mistakes or mishandles funds, they are personally liable to the beneficiaries of the estate for these actions.  It is therefore almost always advisable for the executor or administrator to hire an experienced estates attorney to assist him or her with regard to all aspects of the decedent’s estate.estate litigation lawyer

What is Needed During a Probate Proceeding?

estate litigation lawyerA probate proceeding is a proceeding brought to see to it that a Will is accepted as being valid by the Surrogate Court in New York State. The best way to start a probate proceeding is to visit several attorneys and hire an experienced, dedicated estate lawyer. Make sure when you hire this lawyer, that he or she has been doing this for a minimum of ten years and has handled numerous estate matters.

There are a variety of documents which are necessary to assist the attorney in bringing the probate proceeding. The following are a list of some of these items:

  • The original Will. The original Will, not a photocopy of the original Will, should be brought to your attorney’s office.
  • Your attorney will need several original raised seal death certificates. It is suggested, depending on the size of the estate, that you receive a minimum of six, and if there are a number of different bank accounts or securities accounts involved, twelve original death certificates may be helpful.
  • You need to bring with you, when you go to your attorney’s office, a copy of a funeral bill indicating it is paid. Funeral directors have a very strong lobbying group in Albany, and estates cannot be processed unless you show the funeral bill has been paid.
  • You need to provide the attorney with the names and addresses of all of the individuals who are next of kin as well as all the individuals named as beneficiaries in the will.
  • In the event there are minor children involved, the attorney will need to know their names, addresses, dates of birth, social security numbers and the names and addresses of their legal guardians.
  • If you are familiar with the assets of the decedent it is very important you provide the attorney with an itemized list documenting each and every one of the assets the decedent died owning.

If you provide the attorney you hire with all of the necessary information and documents, the estate proceeding will move forward without problems. This can also reduce your legal expenses and the time it takes for the Will to be probated.

It should be noted that once a Will is probated, distribution of the assets is not supposed to take place for a period of seven months. This gives creditors a reasonable period of time to file claims against the estate.wills and estates attorney

How Do I Avoid Probate?

estate planning lawyerIn some states, the probate process can be long and expensive. Wills, when they are probated, are public documents and anyone can go to the courthouse and view the Will. While there is a valid reason for drafting a Will and having it probated, in some cases this may not be the very best way to handle the transfer of assets from one generation to the next. This is especially true when the individuals involved are of modest means and do not have significant amounts of property. The following are several examples of devices which can be used to avoid the necessity of probate.

Joint Ownership of Property

When two individuals own property, and they want the survivor of the two to become the sole owner of the property they enter into a type of deed which specifically has the right of survivorship. In New York State a deed which allows for the survivor to inherit the property is called a joint tenancy with right of survivorship, or a tenancy by the entirety for married individuals. This type of deed causes the property upon the death of the first one to die to automatically vest title to the entire parcel of property in the other individual’s name.

Gifts

Simply speaking, if you gift your assets to others during the course of your lifetime you will have no property to be inherited at the time of your death. There are various Internal Revenue Service rules concerning the gifting of property. As of the writing of this article an individual can gift up to $5,430,000 (a married couple can give $10,860,000 specifically $5,430,000 for both the husband and wife) during the course of his or her lifetime without it creating a Federal taxable event. The amount an individual can give to others during his or her lifetime goes up each and every year based on a formula which deals with inflation. In addition, an individual can, each and every year, give the sum of $14,000 to each recipient in each calendar year. Couples who are married, therefore, can give up to $28,000 to individuals in each and every calendar year.

If a family friend or loved one has medical bills, you can offer to pay for the medical treatment and there is no limit under the Internal Revenue Code as to payments of this nature to help out a friend or loved one.

Living Trusts

A living trust is a testamentary vehicle which will allow an individual to avoid having a will which needs to be probated. In theory, the individual puts his assets in the name of the living trust and therefore these assets are removed from the individual’s estate. When living trusts are created it is necessary to have a pour over will drafted so any assets which are not included in the trust will be poured back into the trust at the time of the individual’s death.

Pay on Death Accounts

If you have maintained money in banks or other financial institutions, you can designate that upon your death all of the assets in the account be paid over to an individual of your choice. When you pass, the individual named on the account needs to provide a valid, original death certificate to prove your death and thereafter all of the funds in the account would be paid over to him or her.

Conclusion

The best way to avoid probate is to meet with a qualified estate planning attorney and work out an estate plan which meets your family’s needs.wills and trusts lawyer

Guardianship Proceedings

guardianship attorneys on Long IslandEveryone who lives will eventually grow old. Sometimes elderly individuals lose their mental and physical strength related to their aging. In these situations, they can be subject to undue influence concerning the money they have in the bank, other financial assets and real estate they own. The undue pressure can come from a variety of sources. Sometimes caregivers, relatives, friends and other loved ones take advantage of seniors who are in a reduced mental state. A senior who is in a weakened mental or physical state may be induced to make bad decisions. In addition, seniors may also become incapable of tending to their financial affairs, their medical treatment and caring for themselves. In these situations, the legal proceedings that are required to help the seniors are called guardianship proceedings.

Guardianship proceedings deal with helping seniors make medical and financial decisions. In addition, it stops other individuals from taking advantage of seniors who are in a reduced psychological or physical state. Seniors in reduced mental and physical states can be taken advantage of with regard to their assets and other financial matters. This can cause the value of the senior’s estate which was intended to be paid to loved ones or other beneficiaries to be significantly reduced.

Expeditious Legal Action

If someone is being taken advantage of to his or her financial detriment, it is important legal action be taken quickly and efficiently. If your rights as a loved one or other beneficiaries have been compromised or are in the process of being compromised, bringing a guardianship case not only helps the affected senior, but protects inheritance rights as well. Sometimes family members sit back and take no legal action to deal with the dissipation of assets of a loved senior by an unscrupulous or inappropriate person. The longer you wait to straighten out this type of improper situation, the more difficult it becomes to retrieve the assets.

Immediate Legal Action Regarding Misappropriated Assets

Legal action should be taken immediately when you become aware of the misappropriation of a senior’s assets by a third party. This will protect the senior from losing all of his or her assets and protect the potential beneficiaries with regard to inheriting from the estate.estate planning lawyer

Executors and Estates

Attorney for ExecutorsThe 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 been made more complicated.

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 would 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.New York Estate Planning Attorney

Documents Necessary To Probate A Will

Long Island Estate LawyerIn the State of New York, the probate process is undertaken in the Surrogate’s Court before a Surrogate Judge. Surrogate’s Court also supervises estates called intestate estates, where a Will was not drafted by the decedent. There are a variety of documents the Surrogate’s Court requires to facilitate the probate process. The most important document is the actual original Last Will and Testament. It will also be necessary to submit a raised seal original death certificate. The purpose of the submission of the death certificate is to prove that the individual who made the Will is deceased. In addition a probate petition will need to be filed. The probate petition will go into the name of the person bringing the proceeding which is usually the executor of the Will. In situations where the executor predeceased the individual who made the Will, or for any reason is unable to fulfill his or her duties as an executor, the Will will usually name an alternate or successor executor whose name must be contained in the petition for probate.

The Probate Petition

The probate petition will also have information as to the date the Will was executed, the names of individuals who acted as the attesting witnesses to the Will and it will establish an estimated value of the property of the individual who died. The value of each type of property the individual who died had also must be listed in the probate petition. Items such as bank accounts, life insurance policies, and annuities which have beneficiary designations contained in those documents are considered testamentary substitutes and do not need to be named in the probate petition. In addition, the names and addresses of all beneficiaries and blood heirs of the decedent must be named in the probate petition. The probate petition also must be signed by the executor or a successor executor and their signature must be notarized. It should be noted that the Surrogate’s Court in New York does not allow probate petitions to be submitted unless they are completed and all the information required is contained in the petition.

Waivers and Consent Forms

The attorney for the executor will usually submit waiver and consent forms to all of the next of kin of the decedent. This form establishes that these individuals who are next of kin, or heirs under intestacy, do not contest the terms and conditions of the Will. If waiver and consent forms are not signed by the family members, the court will then issue a Citation which has to be served on all non-consenting heirs of blood. This directs these individuals to appear in court on the return date of the probate petition in the event they seek to contest the Will.

In addition, a document referred to as a Kinship Affidavit needs to be submitted to the court to show who are the children and other blood heirs of the decedent.

Submission of Documents in the Surrogate’s Court

Although the Courts in New York have a uniform set of procedures, unfortunately, the clerks in each of the Metropolitan area Surrogate’s Courts have their own idiosyncracies with regard to what documents they seek to have submitted in probate and administration proceedings. They also have individual requirements that are not uniform from county to county as to court procedures. The best way to file an estate in the Surrogate’s Courts is to retain an experienced attorney who practices law in the areas of wills, trusts, estate and probate matters.New York Probate Attorney

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