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

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

Advanced Directives

lawyer who handles estate planningLiving Will

Living wills should not be confused with last wills and testament. Living wills do not provide for the disposition of assets after death. Living wills are designed to state an individual’s preference with regard to medical treatment should they be unable to communicate or direct their doctors or family members concerning their wishes. This prevents loved ones from being in a difficult position with regard to making decisions concerning someone else’s health and welfare without any input from them. A living will can state that in the event the individual is declared brain dead, no artificial respiration or mechanical life supporting machines should be used to keep them alive. It is thought that if an individual is brain dead, medical measures to keep the body functioning do not prolong life, but rather prolongs death. In addition, living wills spell out the types of medical care an individual wants if they are unconscious, develop mental issues, or are simply unable to communicate their desires concerning their medical treatment.

The Living Will and the Terry Schiavo Case

A number of years ago there was a case which received a lot of national attention involving a 26 year old woman, Terry Schiavo. Terry had a heart attack. She lapsed into a coma and spent 15 years in what doctors described as an irreversible, persistent vegetative state. Terry could not communicate in any way, form or manner concerning her wishes regarding her medical care. Terry’s husband felt she would not want to continue living in a vegetative state. He requested the feeding tube attached to her body be removed and she be allowed to die a natural death. Terry’s parents strongly disagreed with this decision. They brought a legal proceeding to stop the feeding tube from being removed. There was extensive legal proceedings involving significant amounts of money through lower courts and appeals courts regarding the Terry Schiavo case. In the end, the husband was successful. The feeding tube was removed and Terry died a natural death.

Conclusion

An individual never knows when something catastrophic is going to happen to him or her. Using the advanced directive of a living will can avoid the type of problems that existed in the Terry Schiavo case.

estate planning attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.

How to Handle an Improper Will

Please click on the link below to watch today’s video blog:

https://youtu.be/diSYdWiNpXU

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.

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

Handwritten Wills

To watch today’s video blog, please click on link below:

https://youtu.be/WYaYj8FP0fQ

Elliot S. Schlissel drafts wills and trusts and aids his clients in all aspects of estate planning.  Elliot handles estate litigation, including issues where a person has died without a will or with an improper will.  He and his associates have been handling these types of matters for nearly 40 years.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email at schlissel.law@att.net.

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

Convenience Accounts

New York estate planning attorneyIn 1991, New York State passed a law creating convenience accounts. A convenience account is usually set up by a senior to allow another person who is named on the account to sign checks and make withdrawals solely for the benefit of the senior citizen who created the account. The purpose for the creation of convenience accounts is to avoid problems caused by the second person placed on an account improperly using the funds in the account to enrich themselves to the detriment of the senior who placed the funds in the account. When the senior citizen who creates the account dies, the money in the account goes into his or her estate and does not become the property of the other individual named on the account.

Help Paying Bills

It is fairly common for senior citizens to add one of their children to a joint savings and/or checking account to help them pay their bills and everyday expenses. Sometimes when a child isn’t available, or isn’t reliable or trustworthy, seniors’ name grandchildren and/or other friends or relatives as joint account holders on their checking and savings accounts. When this action is taken, the joint account holder has the right to keep the money in the account and/or withdraw and spend the money for any purpose whatsoever. When the individual who made the account dies, the joint holder inherits all of the money in the account.

Appropriate Actions vs. Inappropriate Actions

If the child or grandchild is a good person and uses the account solely to pay the expenses of the senior, the situation works out well. However, there are numerous cases which I have personally witnessed, where the joint account holder secretes virtually all of the money on the account and spends it on themself. In some situations this makes the senior indigent.

Conclusion

Having a convenience account is an appropriate estate planning technique. However, the account should be truly a convenience account and not simply a joint account with a child or other loved one.

estate planning lawyer in New YorkElliot S. Schlissel is an elder law attorney.

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
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