Estate Planning





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Brooklyn, NY  11241

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Manhattan, New York, 10036.
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Lake Success, New York, 11042 

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Probate FAQs

What is Probate and can (should) it be avoided?

Probate is the legal procedure by which a person's will is proven to be genuine, and thereafter administered by the courts. The first step is to file the deceased person's will with the court (this is required in most states, and should be done shortly after a person dies). Once the will is filed, the next step is to prove its authenticity. This is usually done by supporting declarations, signed by the persons who witnessed the will's execution. After a will is proved to be genuine, the administration process gets underway. This usually involves filing an inventory with the court; filing estate tax returns with the IRS; arranging to pay any applicable taxes; getting appropriate court orders if property must be sold; and finally, getting an order of court distributing the estate to the designated heirs. It can be a slow and costly process, and that has caused many people to avoid probate if at all possible. One recent development in many states is the enactment of statutes that provide for accelerated procedures for smaller estates (those estates which have total assets less than $30,000). This has eased the burden of probate somewhat, but it still exists. 

How do I avoid probate?

One way is to have a small estate to submit to the probate court. While that might sound strange, especially if a person has substantial assets, it not only can be done, it often is done. The key method here is the use of a living trust prior to death. In this type of arrangement, a person transfers all of his/her property to a living trust; the property owner designates him/herself as both the trustee and lifetime beneficiary of the trust; upon death, the beneficiary's children (for example) may succeed him as beneficiaries of the trust. The point is that the property has been transferred prior to death. Upon death, the property is in the name of the trust. Even if there is a will (there usually is), it will dispose of only a small amount of property, often "pouring over" any remaining property to the trust. 

The point here is that the trust can be administered without a court order and at a much lower cost. There is no saving on death taxes, but the probate fees and related expenses are minimized. 

One word of caution: for the trust arrangement to work property must actually be transferred into it; separate books must be kept; separate bank accounts maintained; separate tax returns filed. Although it sounds complicated, it need not be. Trusts are set up all the time and some good counseling will involve some expense at the outset, but may result in great savings in the long run.

My husband recently passed away on July 4, 2005. Our relationship was quite tumultuous over the 15 years of our marriage. My daughter recently offered the Will to the Surrogate’s Court for probate and I learned that his entire estate was left to my children. What can I do? (NY)

New York estate law imposes upon resident spouses many responsibilities and duties during life. At death, some of these duties cannot be avoided. Thus, one can not disinherit a spouse and a spouse is entitled to a certain percentage of the decedent’s estate despite any intention to disinherit stated in a written Will. New York estate law defines this is as a “Right of Election.¨ A spouse’s elective share equals the greater of either $50,000, or one-third of the net estate. Generally, the statute cannot be avoided by the decedent’s gifting away assets during their life. According to this section of the law, one must elect within six months from the date of issuance of letters testamentary or of administration but in no event later than two years after the date of the spouse¡¦s death. 

My uncle recently passed away, survived by his 3 children. We shared a very close relationship and he was not close to any of his children, all of whom abandoned him many years ago. He told me that I was the sole beneficiary of his Last Will and Testament. In fact, after his death I did find among his personal effects a copy of his Will which nominated myself as executrix and named me as the sole beneficiary of his substantial estate. I have looked high and low for the original Will. My uncle’s attorney also did not have the original Will. He said he sent it directly to my uncle after it was signed. What can I do? (NY)

A photocopy of a Last Will and Testament may be offered for probate. The Surrogate’s Court Procedure Act (Section 1408) requires that the petitioner meet the following three burdens in order to have a photocopy of the Will admitted to probate: One must establish that the decedent did not revoke the Last Will and Testament being offered to the Court, that the Last Will and Testament was properly executed in accordance with New York estate law, and that at least two witnesses can demonstrate that the photocopy is complete (compare to the ancient document rule). 

My friend recently passed away after a prolonged illness. His wife predeceased him and he is survived by his two sons, whom he despised and had not seen in over 20 years. I even took care of him for the past three years by taking him to all his medical appointments. He verbally promised to leave his entire estate to me by making me the sole beneficiary in his last Will and Testament. I have just learned that one son has submitted the decedent’s will to the Surrogate’s Court for probate, but that the entire estate is left to the two sons. Can I object to his Will? (NY)

According to New York estate law, only a person with an interest in the estate that would be jeopardized by the admission of the Will to probate can object. In cases where the deceased did not write a Will then only those relations alive at the time of death may object to a will. The only other person that may object to a written Will is a beneficiary in a prior Will. 

What are rights of relatives who have been cut out of an estate?

Pre-termitted heirs are persons who are "cut out" of an estate. The classic example is the child who is "disinherited." Often a pre-termitted heir challenges the will that disinherits him. The issue to be decided is whether the decedent really meant to cut the person out of the estate. Whatever emotions may be, children do not have a legal right to inherit their parent’s property if the parents wish to dispose of it otherwise. The key issue is: what did the decedent intend? If it was to cut out the children (or other heirs) and the will is clear, and is properly executed, they will in fact be cut out. 

Can adopted children inherit property?

Yes. Most states have law that provides for adopted children to inherit property the same as natural children.