Estate Administration is when the courts determine what happens to the estate of someone who is deceased, often because he or she left no will or trust, or because the estate is involved in some sort of litigation or dispute.
If you are seeking an estate administration attorney because a relative has died and his or her estate is being distributed by a New York Surrogate’s Court, our Law Firm can help you.
If you want to challenge a will, or if a lawsuit is posthumously brought against a relative, we can also help you.
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Schedule a consultation to learn about how we can best represent you. We handle estate administration, and we represent parties in all types of probate litigation.
What is Probate Administration?
In many cases, the estate of a deceased relative passes through Surrogate’s Court before assets are distributed among the heirs.
The court for estate administration in NYS is the Surrogate’s Court. Each county has a Surrogate’s Court, so my office is near Queens County Surrogate’s Court.
You can probate a will in Surrogates Court or administer an intestate estate. Our law office can help an executor or executrix or administrator obtain letters testamentary which are required by financial institutions to turn over property to the holder to be administered and distributed to the beneficiaries of a will.
For example, Surrogates Court is required under the following circumstances:
- Real estate – Depending upon how real estate is titled in NYS, the real estate may pass by operation of law and does not need to be administered by the estate. It is imperative to have attorneys like Law Offices of Michael Spevack review your title to see if a property is titled as tenants by the entirety or joint tenants with rights of survivorship or in some other way. Tenants by the entirety pass without need of court approval. Do not take chances with your real estate investments.
- Financial assets – If checking accounts, bank accounts and investment accounts are titled solely in the decedent’s name with no “pay on death” designation, the bank or brokerage will not transfer ownership of the account to any other person without an order from the probate court — again, in accordance with any instructions in the will.
- A lawsuit involving the deceased individual – If the person was killed in a car accident, for example, and the surviving relatives wish to file a wrongful death action, that action must be filed by the estate of the deceased person. This cannot be done without a court order.
- Approval of the personal representative – If the will names a personal representative to oversee the transfer of assets, he or she must be approved as a fit and proper person by the Surrogate’s Court.
- A relative dies without a will – If no will exists, the estate will be distributed under the oversight of the Surrogate’s Court according to the distribution rules of New York’s intestacy laws.
- Estate Litigation – Estate litigation arises because of all kinds of circumstances.
An heir may wish to challenge the validity of the deceased’s will by claiming fraud or undue influence exerted on the will maker from one of the beneficiaries.
A person not named in the estate administration documents can challenge the will by claiming status as a proper beneficiary.
A family member can challenge the designation of another relative as the personal representative of the estate.
Finally, estate litigation may be necessary to determine whether or not real estate owned by the decedent was homesteaded, which in New York helps determine who has what kind of legal ownership of the property.
Mistakes To Avoid in Your Will
Don’t Make These Mistakes
We often have potential clients bring in Wills prepared by other attorneys for us to review. All too often however, we find problems that the clients did not even realize were there. Below is a summary of the three most common mistakes we often find. Make sure you are not making these same mistakes in your Will.
- Failing to Plan for Management of Assets for Minor Children
It is very common for people to want to leave assets and property to their children and grandchildren in their will. Often overlooked however is whether or not these heirs are capable of managing these assets. The problem we see quite often is that wills are drafted in such a manner that the next generation receives assets well before they are financially mature enough to handle them.
Consider this example. You are married with a son and daughter ages 11 and 16. If you were to pass away, your kids would inherit your bank accounts and property. Although your spouse would legally be able to manage the assets for them until they turn 18 years of age, what happens after that? At 18, they are of legal age and they can now force your spouse to give them possession of their assets they inherited from you. Do you want your 18 year old child having access to a bank account and property that they could do whatever they want with? There is a good chance that given the sudden “windfall” of spending ability, your kid may not be all that concerned with immediately going to college or finding a job. There is also a good chance that they will blow through those assets quickly as most teenagers seem to have a knack for doing.
To solve this problem, it is important to plan for management of those assets for your kids after you are gone. We typically do this by creating a testamentary trust inside of your Will which acts like a “bucket” to hold these assets for them. The assets can then be managed by someone else who can make sure the money is used prudently. It can also be structured to ladder out the assets to your kids over time, such as giving them 1/3 of the assets at age 25, another 1/3 at age 30, and the remaining assets at age 35. This gives them some much needed structure to give them time to mature financially before having access to assets.
Not creating these “buckets” to hold and manage assets for kids is a common mistake we see all the time in estate plans. Make sure your estate planning addresses this issue.
- Failing to Have a Plan “B” and a Plan “C”
Most Wills we review do a good job of saying who will receive your assets once you are gone. What is often not addressed by these Wills however, is what happens if one of those people you are leaving things to passes away before you. Do you have a backup plan?
For example, many people typically draft their will to provide for their estate to go to their spouse when they die. If their spouse passes before them, the Will usually then provides for the estate to go to their children. For most people, this is where their Will stops. The question then becomes what happens if one of your children passes away before you…where will those assets go?
To solve this problem, we make sure to draft into the Wills that we prepare a clear list of alternate persons to inherit should someone pass away that you name in your Will. Typically for most people, it is their grand-kids that they want as their Plan “C” if something should happen to a child that is named in their Will. Many times however, these grandkids may be of a very young age, or may not yet even be born. In these situations, a testamentary trust can be used in the Will to serve as a “bucket” to receive and manage these assets for the grand-kids.
The use of a testamentary trust within the Will as a Plan “C” provides the necessary structure and management of assets that is important if you have young grand-kids that may inherit from you.
- Failing to Avoid Unnecessary Legal Expenses to Your Estate
There are many things you can do in your Will and Estate Planning documents to avoid unnecessary legal expenses down the road.
One area your estate can save money is by properly planning for assets that are not located in New York. Many times we help people who live here in New York but may also own real estate in another state. Sometimes it is a rental or vacation home they have, or it may be property they inherited from a relative that they now co-own with their family.
In any event, when your succession is opened after you pass away, the New York Court will not be able to transfer ownership of any out-of-state property to your heirs. It will be necessary to open a second succession/probate proceeding in the other state where that property is located.
This means double the legal expenses and court costs that your heirs will have to pay. We have many ways to solve this problem, which could include setting up a company here in New York (typically a LLC) and transferring the title of the out-of-state property into the name of the LLC.
When you pass away, your heirs receive the interest in the LLC through the New York succession proceeding which completely avoids the need to open another succession in the other state for the out-of-state property.
There are many other areas such as this that can be planned for in advance in your Will that can save your estate considerable expenses after you are gone. Too often people simply do not take advantage of these solutions when drafting their Wills.
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In addition to practicing law in New York City, I have been writing valuable and informative legal contributions at AttorneyandLawyer.com for many years.