Do I need a lawyer for New York probate?
Generally yes, not because of any court rule or state law but because
the formal administration of an estate has so many technical rules and
pitfalls that it can be very frustrating for the non-lawyer.
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Does the lawyer need to be in the same city or county
as the decedent?
Usually not. Most probated estates are uncontested and undisputed,
in which case neither the attorney nor the executor actually goes to
court. All the paperwork is handled by mail. Therefore most estates
can be handled by any New York-licensed attorney, regardless of where
he or she may actually have his or her office.
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My mother just died, leaving my father a widower. The
bank accounts are in joint names, as is their house, and her insurance
and IRA both list Dad as the beneficiary. Does anything need to go through
probate?
No, jointly held assets between husband and wife almost always are
"survivorship" assets, with the surviving spouse automatically
owning those assets upon the decedent's death. Insurance and other assets
which have a "pay on death" designation pass "outside
probate," at least when going to the spouse, and the beneficiaries
do not need a court order. They usually have to fill out a form, submit
a certified death certificate or take other steps, but probate should
not be needed.
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How long does New York probate take to finish?
That depends. The term "probate" is sometimes used to mean only
the process of getting the will accepted by the court and the executor
appointed, a process that can be done within a month, often within days
in some circumstances. However, when used to describe the entire process
of administering an estate, it can take significantly longer, though often not more than a year. Generally a Surrogate's Court will not accept a formal
or informal closing less than seven months after the appointment of
the executor. Add on a month's time to get appointed, and it is about
eight months, beginning to end, IF there are no complications. Taxable
estates cannot close until the IRS signs off on the Estate Tax Return
Form 706, which has to be filed within nine months after the date of
death and often takes that long to prepare. Taxable estates optimally
can close in two years. However, the work is primarily done in the first
nine months of a taxable estate, and the rest of the time is spent mainly
waiting for IRS review and approval to close the estate.
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Do all estates in New York have to go through full-blown
probate?
No, very small estates without real property may qualify for "voluntary
administration" status. Those estates typically have less than
$20,000 in assets (this limit is subject to revision by the state legislature).
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Does New York have a death tax or estate tax?
Yes — and an estate can owe New York tax without owing any federal
tax.
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What about federal estate tax?
Since the estate tax situation is somewhat in flux, it is difficult
to generalize. For example, the federal estate tax is scheduled to disappear
completely (barring any changes to the tax code) by the end of the decade,
then complete return to its former level the following year. The tax
code is subject to constant tinkering at the whims of Congress, so anything
can happen.
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What if the decedent left no Will?
First, be sure there is no will. Just because you do not quickly find
one does not mean there is not one in a safety deposit box or hidden
away with other papers. Also, wills don't "expire." Just because
someone did a will forty years ago doesn't mean there is "no Will."
If there is no will, New York has an intestate succession law which
states that certain persons receive the estate. If there is a surviving
spouse but no lineal descendants (children, grandchildren, or great-grandchildren,
natural or adoptive), then the spouse gets the entire estate. If there
are lineal descendants, the spouse gets at least half the estate, but
the descendants get some part also. If there is no surviving spouse
and no lineal descendants, then the estate goes to any surviving parents
of the decedent. If no parents, then to other relatives of the decedent,
starting with brothers and sisters. Many times this intestate succession
is not exactly what the decedent would have wanted, which is one reason
why a will is a good idea.
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Do I need to come back to New York to probate my parent's
estate?
No, not usually for probate. Unless a dispute requires a hearing, neither
the executor nor the estate attorney will actually need to go to the
court in New York. There is no "reading of the will" like
you see in old movies. Everything can be done by mail, phone, and fax.
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Why can't I just record the Will to change the title
to my parent's property in New York?
The mere recording of the Will doesn't change the ownership of the
property because it does not convey title to the property. In addition,
there are situations in which the property cannot pass according to
the Will due to the nature of the property, estate creditors, or other
reasons.
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What kind of "stuff" do I need to look at to make an inventory of the estate?
Well...Pretty much everything owned by the person when they were alive.
This includes:
- Cash and bank accounts of all kinds
- Money owed to the decedent (i.e., Mortgage or Note)
- Real Estate
- Stocks and Bonds (including mutual funds)
- Insurance on Decedent's Life
- Annuities
- Any other miscellaneous property
You should also make a list of any Jointly Owned Property.
Finally you may need to consider any special or unusual circumstances that may exist, for example if the individual was a beneficiary of a trust.
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Return to Is Easy Probate for Me?
What if there are not enough assets in the estate to
pay all of the decedent’s debts?
Obviously there will not be any inheritance to the heirs or beneficiaries,
who receive assets only if all debts are paid. New York law has a statutory
priority of claims, in which some claims (such as funeral expenses) come ahead of others. Most important in this day
of “living trusts,” New York law allows the creditors to
reach assets of the decedent which were placed in certain types of trusts,
and requires those trustees to use trust assets if necessary for estate
expenses and claims.
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My dad put my name on his checking account so that I
could sign checks for him if he was disabled. Now that he is dead, the
bank says that I can withdraw the money. Is that right?
This is one of the most problematic issues in estate situations. From
the bank's point of view, if your name was on the account you could
have taken out money (even all the money) before your dad died. The
bank isn't concerned with who put the money into the account. However,
there may be tax and other consequences involved if you were to do so.
Unless you are the sole beneficiary, this approach has the potential
to create some conflict between yourself and the estate, and legal counsel
is needed.
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My mother left everything to my sister and nothing
to me. Can she do that?
If you are over the age of 18, yes, she can, provided that no grounds
exist to set aside the will. Adult children can be disinherited in a
will in New York. Minor children may have certain rights.
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