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

Why Should You Have A Will?

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot 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.

How Estate Litigation Works in Surrogate’s Court – Part II

estate litigation lawyerThe Trial

The trial will either be conducted before a jury or by a judge. There are certain issues an individual can request a jury for. If the claims at trial are that the executor, administrator or trustee embezzled funds or acted improperly, the court can order that individual to repay the estate or the trust for the funds which were improperly taken.

Estate litigation is complex and emotional. It usually takes place between loved ones who have a dispute over money. The difference between estate litigation and divorces is that in divorces loved ones fight over their money and in estate litigation the parties are litigating regarding other people’s money. The best way to deal with estate legal problems is to hire an experienced, dedicated estates attorney. When hiring an attorney you should investigate his or her background to make sure they are the right person to handle your case.   You should discuss with the attorney how many Surrogate’s Court cases he or she has tried, what type of estate cases he or she has tried and the results in these cases.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He has been handling estate litigation, wills, trusts and other issues pertaining to estate planning for more than 35 years. estate and trust attorney

 

New York State Tax Exemption Statute

Long Island probate attorneyIf you die in the State of New York, you may have to pay New York State inheritance taxes. This is in addition to potentially paying federal estate taxes. Until fairly recently only the first $1,000,000 inherited in an estate was exempt from New York State estate taxation. However, the law recently changed. The tax exemption for an estate is now $2,062,500. This means, the first $2,062,500 inherited from an individual dying in New York State is exempt from New York State inheritance taxation and only those funds over this amount are taxed in New York. This exemption increases to $3,125,000 in the year 2015. In 2016, it goes to $4,187,500, and in 2017 it increases again to $5,250,000.

Catching the Federal Estate Tax Exemption

The slowly rising New York State estate tax exemption is designed to catch up with the federal tax exemption in the year 2019. In 2019 it will match the federal exemption. The federal exemption is currently $5,340,000 and is indexed to inflation. Someone dying in the State of New York with assets of more than 105% of the New York State estate tax exemption is subject to New York State inheritance taxation.

Estate Planning

The annual increase of the New York State estate tax exemption until 2019 should be taken into consideration with regard to individual estate plans.Estate planning attorney in Metropolitan New York

Do It Yourself Estate Planning: A Big Mistake!

We live in the age of the internet. There are numerous websites that provide information with regard to preparing your own wills and trusts. Many of these self service legal websites have spent significant amounts of money advertising their services on the internet. They purport to provide you a way of one stop shopping in the area of estate planning and avoiding the expense and inconvenience of dealing with attorneys. Unfortunately, it is the writer’s experience these websites provide general information which is often inaccurate with regard to the laws and requirements of estate planning in specific states. In addition, much of the general advice on these websites does not deal with the specific requirements that individuals have in a family based estate plan.

Staff on Websites Are Generally Not Lawyers

The individuals who work for these estate planning legal websites, are generally speaking, not lawyers, and if they are lawyers, it is exceedingly unlikely they would have the knowledge of the technicalities involved in estate planning in all fifty states of the United States. The idea that one will or one trust fits all needs simply does not work. Individuals who work on these internet estate planning websites are not providing you with legal advice. What they are doing is simply processing the information based on a computer software program that may or may not apply to your individual situation. The documents they provide to you are not interactive documents. The do it yourself legal companies are not authorized to practice law. Therefore in the event they were to actually try to provide you with interactive personalized documents, they would be committing the unauthorized practice of law which is a crime in most states subjecting them to potential criminal penalties.

Estate Planning Documents

The tax laws, wills, trusts and estates laws, and the procedures involving wills, trusts and estates and the probating of wills are specific with regard to each state, and sometimes with regard to each county in the state. Lawyers who handle estate planning and probate matters developed expertise, often over decades, which allows them to work with their clients to protect their clients’ best interests. An inappropriately drafted will or trust can cause much more damage than having no will or trust at all. Using a form to accomplish your goals, may provide you with a sense of false security. However, in many situations, it is more likely to result in more harm than good. Inaccuracies in the documents, mistakes in the preparation of the documents, failure to execute the document in the appropriate manner with all necessary legal technicalities can cause the document to be invalid and not accomplish your goals.

Conclusion

help in estate planningIf you want to have a will or trust prepared, deal with an estate in the Surrogate’s Court, or probate a will for a deceased individual, do yourself a favor and get it right the first time. Hire an experienced estate planning attorney!

Walk Through of Decedent’s Home To Discover Assets Denied

estate planning lawyerA petition was brought to Gutierrez before Surrogate Rita Mella in the Surrogate’s Court of New York County. Gutierrez claimed he had personal possessions which were in the home of the decedent at the time of decedent’s death. The executor, Berlin, a sister of decedent asked the court to dismiss this discovery petition. The decedent had left a will. It made certain specific bequests to Gutierrez.

Gutierrez wanted a “walk-through” through decedent’s apartment to identify various items which belonged to him. The executor took the position there was no statutory right or authority for Gutierrez to have a walk-through. In addition, the executor claims all property maintained at decedent’s residence had been previously abandoned by Gutierrez.

Walk Through Petition Dismissed

Judge Rita Mella granted the application by the executrix to dismiss the petition brought by Gutierrez for a walk through. She ruled that it did not state a cause of action under the Surrogate’s Court Procedure Act. She took the position that Gutierrez was not entitled to a walk through pursuant to statutes or caselaw. She dismissed Gutierrez’s petition which stated he had personal effects which were not specifically delineated in his petition to the court. His request to identify these items during a walk through of decedent’s apartment was denied.

estate plannersElliot S. Schlissel and his attorneys litigate all types of estate issues throughout the Metropolitan New York area. The law firm also has an excellent reputation in representing clients regarding elder law issues.

Will Leaving $100,000 to a Cat is Upheld

Charlotte Stafford had three nephews and a cat. She left her cat, Kissiemeouw, $100,000 and she disinherited her three nephews.

Nephews Challenge The Will

The nephews challenged the will. They claim their aunt did not have the mental competency to make a will. The attorney who drew up the will testified Charlotte Stafford was “very aware and alert at the time the will was drafted.” He testified she had the appropriate testamentary capacity and knew exactly what she was doing when she left $100,000 in a trust to her cat.

No Undue Influence From The Cat!

Justice John Egan wrote the decision on behalf of the Appellate Division for the Third Department (an appeals court) that by all accounts, decedent was a very intelligent, private and strong willed woman who ran her life the way she wanted to run it. He went on to state her attorney “did not observe any evidence of undue influence with respect to the execution of various instruments or the dispositions contained therein.” He made these statements with regard to the will and trust set up for Ms. Stafford’s cat.

Charlotte Stafford, in addition to disinheriting her three nephews, left $300,000 to be used to maintain her home. The home was to be held in a trust for the benefit of the Town of Oxford. It was to be used for historical research and preservation purposes pursuant to the terms of her will. The trust she set up for her cat, Kissiemeouw Stafford, contained provisions for the maintenance of the Stafford home which was to terminate upon the cat’s death or the passage of 21 years from Charlotte Stafford’s death. Her friend and housemate, Vicky House, was designated as the cat’s caretaker. Pursuant to the terms of the will, she was allowed to live in the Stafford house rent free as long as she acted as the caretaker of the cat.

Conclusion

Cat wins, nephews lose!

Elliot S. Schlissel, is a member of the National Academy of  Elder Law Attorneys.  He drafts wills and trusts and represents clients regarding estate litigation.

Retirement for Seniors is Growing Out of Reach

wills and trusts attorney long islandIn earlier generations, retirement was looked at by Americans as their golden years. This may no longer be the case for seniors. It is estimated close to half of all Americans facing retirement age are economically insecure. More than a quarter of all individuals facing retirement have less than $1,000 in savings. The average senior citizen has to pay almost $400 per month to cover basic medical needs. This includes Medicare premiums, supplemental coverage and other medical related expenses. If you are in poor health, it is estimated you will spend over $500 per month in medical related expenses during your retirement.

Seniors Working After Retirement

Working after retirement sounds strange. The purpose of retirement is to not work. It is to enjoy your life. Unfortunately, enjoying your life in America requires having enough money to live on. More and more seniors are finding after they retire their savings, social security and retirement income is inadequate to maintain a reasonable lifestyle. So seniors find themselves retired but still working. Some seniors go back to work at the job they used to have. More often than not, they end up with new or alternative employment which pays them less than they were making before they retired. Having the financial inability to support one’s family in retirement results in seniors being forced to work their entire lives. Retirement requires a financial ability to retire. Without financial portfolios, pensions, 401(k)s, annuities, and sufficient social security payments many seniors will find that retirement does not exist for them.

Conclusion

Retirement was something Americans once looked forward to. For as many as half of the seniors in the United States, this is no longer practical. The impoverishment of senior citizens and their inability to retire and enjoy their remaining years with a modicum of dignity and an enjoyable lifestyle may not exist for a large portion of seniors. This is unfortunate and shameful.

retirement planning attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He drafts will and trusts. He probates wills. He assists seniors with estate planning and elder care issues. Feel free to call if you have questions.

Objections to the Probate of a Will for Undue Influence and Lack of Capacity Denied by the Surrogate

long island estate attorneysSurrogate Peter Kelly, sitting in Queens County, recently had a case before him wherein a son objected to his father’s will being probated. The son, by his attorney, filed objections to probate. The objections alleged his father lacked testamentary capacity at the time of the execution of the will, the will was not properly executed, and there was undue influence over his father at the time of the will execution.

The decedent’s daughter moved for summary judgment requesting the will be admitted to probate and that her brother’s objections to the probating of the will be dismissed by the Court. A summary judgment motion is a motion made on papers which requests the court find there is no questions of fact regarding the application and that a trial will not be necessary to determine these issues.

The Judge Orders a Hearing

Surrogate Peter Kelly ordered a hearing. After the hearing, Surrogate Kelly found the daughter had submitted prima facie evidence the will was properly executed. The court took into consideration the execution of the will was supervised by an attorney, and this gave rise to a presumption the will execution had complied with all statutory requirements. Justice Kelly went on in his decision to state the son, who was objecting to the will, did not establish an issue of fact with regard to his father’s testamentary capacity at the time of the execution of the will. The only medical evidence submitted by the son was that his father was overweight. No evidence was submitted by the son to show his father lacked testamentary capacity at the time of the execution of the will. The court also stated in its decision there was not a “scintilla of evidence” suggesting the petitioner had been involved in unduly influencing her father with regard to the execution of the subject will.

The son’s objections to the probate of the will were dismissed and Surrogate Kelly allowed the will to be probated.

surrogates court counselElliot S. Schlissel is an attorney who practices before the Surrogates’ Courts throughout the metropolitan New York area. He probates wills, files accountings, and litigates estate related matters.

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