If you're responsible for the administration of a decedent's estate anywhere in the greater New York City metropolitan area, or if you need advice about your rights as a surviving spouse, heir or beneficiary, we can be of service. For the past 25 years, we have advised local and out-of-state clients about the best ways to fulfill their responsibilities, resolve disputes, avoid liability and fully protect their legal rights.
Sometimes, people involved in probate and estate administration matters consider dealing with these matters on their own. While it is possible to handle some probate and estate administration matters on your own, the question is, should you? When people handle probate and estate administration matters on their own, these matters may eventually get done. However, the process can be extremely time consuming, and may include many visits to the Surrogate's Court. There are many legal papers, which need to be filed in connection with a probate or estate administration matter. It is not unusual for legal papers to require multiple corrections until they are in order. This may take a considerable amount of time, and delay distribution to the rightful parties. If the person handling the probate and estate administration process is sharing the distribution with other beneficiaries or heirs, does it really make sense for this person to take on this responsibility for all concerned? After all, if an attorney is retained, the legal fees will wind up being shared by all beneficiaries or heirs.
Some probate and estate administration matters are extremely complex and cannot be handled alone. We can take these matters out of our client's hands and bring them to a faster and satisfactory conclusion.
Whenever a Decedent has died in his or her home, the local police are required to seal the home to insure that the Decedent's assets are protected and not disturbed. Similarly, where a bank learns of the death of a bank customer, the bank is required to seal the Decedent's safe deposit box. Our firm assists individuals, who need to access a sealed home or safe deposit box by expeditiously filing an appropriate petition and obtaining the appropriate access order.
A Probate proceeding is a Surrogate Court proceeding, which is filed for the purpose of establishing the validity of a Will, and insuring that its provisions are faithfully carried out. Our firm works with nominated executors to insure that the Will is expeditiously probated, and that they are duly appointed. We also work to insure that the estate is properly administered, that any estate taxes and estate obligations are promptly satisfied.
We also make every effort to insure that our clients are made aware of their fiduciary obligations, and that they properly fulfill their duties. This is important, since our clients do not want to have their actions questioned by others or by the Surrogate's Court.
At the conclusion of the Probate proceeding, the Executor is required to file an informal or formal accounting. In most instances, an informal accounting is all that is needed, since the executor has acted properly, provided the beneficiaries with a proper accounting, and the beneficiaries are willing to execute a "Receipt and Release." In some instances, a formal Accounting proceeding is required. An Accounting proceeding is needed whenever there is a dispute regarding the estate's assets, where claims have been filed against the estate, or where charities are involved. In an Accounting proceeding, all interested parties are given the right to object to the proposed Accounting, and the Surrogate's Court thereafter resolves all disputed matters.
Lastly, we make every effort to provide our clients with a clear-cut understanding of the fees involved, and strive to provide our clients with quality service at the least possible cost.
Where the Decedent died with out a Will, estate administration is processed by the Surrogate's Court in the county in which the Decedent died a resident. The Administration Department of each Surrogate Court handles estate administration. In those cases where the Decedent died without a Will, the Court is asked to appoint an Administrator to handle the Decedent's estate. The appointment of an Administrator is determined by reference to New York State's intestacy laws, which are contained in the Surrogate's Court Procedures Act (the "SCPA"). As a general rule, any person, who is eligible to inherit property, is a U.S. citizen and not a convicted felon, can serve as the Administrator of an estate. In certain circumstances, the intestacy laws allow other individuals to serve. To understand these rules, reference should be made to the applicable sections of the SCPA.
After the Administrator has been appointed, the Administrator is required to collect the assets, pay the Decedent's debts and taxes, and distribute the estate to the individuals, who are entitled to inherit the Decedent's property. New York State's intestacy laws also determine the individual(s), who are entitled to inherit the Decedent's property. If the Decedent was survived by a spouse and no children, the estate is distributed to the spouse. If the Decedent was survived by a spouse and children, the first $50,000 is distributed to the spouse, and the balance is equally distributed to the spouse and children. [If a child has predeceased the Decedent, the predeceased child's children (the Decedent's grandchildren) will receive their parent's share]. If the Decedent was not survived by a spouse or children, the estate is distributed to the Decedent's parents. If the Decedent was not survived by parents, the estate is distributed to the Decedent's brothers and sisters. If the Decedent was not survived by any brothers or sisters, the estate is distributed to the Decedent's nephews and nieces. If the Decedent was not survived by any nephews and nieces, the estate is distributed to the Decedent's uncles and aunts. If the Decedent was not survived by any uncles and aunts, the estate is distributed to the Decedent's cousins. To understand these rules, reference should be made to the applicable sections of the SCPA.
In New York State, where a Decedent died with bank accounts or other assets, having an aggregate value that is less than $30,000, there is a "Small Estate" procedure that enables small estates to expeditiously obtain Letters Testamentary or Letters of Administration. These "Letters" are needed to enable an executor or administrator to access these assets. Our firm assists individuals, who are eligible to file a "Small Estate" proceeding.
In New York, there is a Public Administrator in each county. A Public Administrator is charged with the administration of estates where there is no family member who can be located, or when no one is legally qualified to administer the estate. Sometimes, the Public Administrator finds the Decedent's Will. In this instance, an executor will be appointed to administer the estate. The Public Administrator's responsibilities are similar to the duties of executors and administrators.
In some instances, individuals first learn of the death of a family member from a Public Administrator's office or from a genealogy company. If you have received this notice, chances are that the Decedent died without a Will, and no closer relative can be found.
In those instances where no closer relative can be found, i.e. there is no surviving spouse, child, grandchild, parent, brother or sister, nephews and nieces, distant relatives, such as uncles, aunts and cousins, can establish their inheritance rights according to New York's intestacy laws. This right is established in a kinship hearing. In a kinship hearing, a relative needs to establish his relationship to the Decedent, and prove that no one with a superior inheritance right is alive. For more information, please see our kinship hearing services under the subheading "Kinship Hearings."
Where the Decedent died without a Will, and the individuals, who are entitled to inherit the Decedent's property, are uncles, aunts and cousins, these individuals are not permitted to serve as Administrator of the Decedent's estate. In these instances, estate Administration is handled by the County's Public Administrator. The Public Administrator collects the assets, and pays the Decedent's debts and taxes. Thereafter, the Public Administrator files an Accounting proceeding with the Surrogate's Court. The Accounting proceeding is intended to obtain the Court's approval of the Public Administrator's administration of the estate, and to award the Public Administrator counsel fees and expenses. After the Court issues an Accounting Order, the Decedent's estate is ready for distribution. However, in these instances, the Court will require that a kinship proceeding be conducted.
In a kinship proceeding, the Decedent's uncles, aunts and cousins must (a) prove their relationship to the Decedent in order to inherit the Decedent's property and (b) prove that the Decedent was not survived by any individuals who (according to New York's intestacy laws), have priority to inherit the Decedent's property. For example, a nephew or niece would have to prove that the Decedent was not survived by a spouse, children, grandchildren, parents or any brothers or sisters.
In order to succeed, it is usually necessary to retain a geneological search company and to provide the Court with certified birth and death certificates, and other certified documentation. In some cases, the testimony of expert witnesses and investigators is needed to establish kinship.
Our firm usually handles kinship hearings on a "contingency fee" basis in which we charge a percentage of the total amount received. Our percentage rate obviously depends upon the complexity of the case. Sometimes, individuals are contacted by genealogical firms, who seek out potential heirs and attempt to refer them to a local law firm to handle the kinship proceeding. Usually, these local law firms charge a 33-1/3% contingency fee. Our percentage rates are usually substantially less than the rates that most local firms charge for these proceedings.
Our firm represents out-of-state individuals, who are either named in a Will as an executor or beneficiary of an estate, or are the Decedent's heirs. In many instances, we advise and represent these out-of-state individuals, and spare them from their need to travel to New York.
Where there is a Will, these services include, without limitation, the probating of the Will; the mailing of notices to distributees, beneficiaries and creditors of the estate; the inventory of estate assets; the review, payment, compromise or defense of claims against the estate; the preparation of accountings, reports and tax returns; the sale and liquidation of estate assets; the distributions of assets to beneficiaries and heirs; and the closing of the estate. Where there is no Will, and an Administrative proceeding is needed, these services will include the filing of an administrative proceeding; the inventory of estate assets; the review, payment, compromise or defense of claims against the estate; the preparation of accountings, reports and tax returns; the sale and liquidation of estate assets; the distributions of assets to heirs; and the closing of the estate. In certain instances, the out-of-state representation is for someone, who is named as a beneficiary in a Will or is an heir, and needs to protect his interest in an estate.
If a Decedent, at the time of death, was not a New York State resident , but owned property in New York State (such as commercial and residential real estate; a condominium apartment, a co-op apartment or a bank account), the estate's executor, administrator or personal representative does not have the legal authority to liquidate this property. In order to obtain this authority, the estate's executor, administrator or personal representative must file an "ancillary probate or administration" proceeding in the county where the property is located. For more information, please see our "ancillary probate or administration" services under the subheading "Ancillary Probate or Administration Proceedings."
If a Decedent, at the time of death, was not a New York State resident, but owned property in New York State (such as commercial and residential real estate; a condominium apartment, a co-op apartment or a bank account), the estate's executor, administrator or personal representative does not have the legal authority to liquidate this property.
In order to obtain this authority, the estate's executor, administrator or personal representative must file an "ancillary probate or administration" proceeding in the county where the property is located.
Our firm has worked with attorneys and executors, administrators and personal representatives from the United States and foreign countries, who need to file an ancillary probate or administration proceeding in New York State. These services include, without limitation, proof of the estate representative's authority; the location and valuation of property held by third parties, such as bank accounts, brokerage accounts and safe deposit boxes; the valuation and sale of real estate; the liquidation of commercial real property interests; the filing of Surrogate Court reports; and the distribution of assets to the beneficiaries of the estate. In those instances where a Decedent died a resident of New York State, and owned property outside of New York State, we can assist executors and administrators, who need to obtain an attorney to handle an out-of-state ancillary probate or administration proceeding.
Our firm provides assistance and information to executors and administrators. Executors are individuals, who are named in a Will. Where there is no Will, the Surrogate's Court will appoint an "Administrator". Executors and administrators have similar roles. They are both charged with the administration of the Decedent's estate. Their duties include (a) gathering the estate's assets; (b) making an inventory of the estate's assets; (c) appraising the estate's assets; (d) paying the estate's debts; (d) filing final income tax and estate tax returns; and (e) distributing the assets to the beneficiaries named in the Will or. where there is no Will, the distributees of the estate.
Executors and Administrators are entitled to receive "commissions" for their services. Commissions are determined according to the value of the estate. In New York, commissions are calculated as follows: 5% of the first $100,000; 4% of the next $200,000; 3% of the next $700,000; 2.4% of the next $4 million; and 2% of any assets above $4 million.
Will contests are challenges to the validity of a Will. Challenges to the validity of a Will can be based upon allegations that the Will was not properly executed; allegations that the Decedent lacked the mental capacity to make a Will; allegations of undue influence upon the Decedent at the time that the Will was executed; and allegations of fraud or mistake involving the Will, which has been submitted for probate.
Estate litigation can involve many different kinds of disputes. These disputes can involve the interpretation of a Will; questionable "deathbed" transfers, which may have been made to avoid the inclusion of certain assets in the probate estate; the valuation or status of certain probate or "non-probate" assets, the estate's ownership of certain assets; the right to receive insurance proceeds; a demand for an accounting; allegations of a breach of fiduciary duty, based upon fraud, self-dealing or a conflict of interest; kinship disputes; reimbursement claims filed or made against an estate by Medicaid or the New York City Department of Social Services; creditor claims; spousal election disputes; and disputes involving the sale of estate property.
When a Decedent dies with a Will, the surviving spouse has a choice. The surviving spouse can elect to inherit the property bequeathed to him or her under the Will, or take 33-1/3% of the value of the estate under the statutorily-provided "right of spousal election." By taking advantage of this "right of spousal election", a surviving spouse can avoid being disinherited, in the event that the Will does not adequately provide for the surviving spouse.
Our firm advises surviving spouses about the "right of spousal election", and helps surviving spouses determine whether this election will work to his or her advantage.
In those cases where a Decedent left everything to his children from his first marriage, and nothing to his second wife, the surviving spouse's decision to take advantage of this "right of spousal election" is an easy one to make.
However, in many instances, a detailed evaluation is needed to decide whether to exercise this "right of spousal election". In order to make this evaluation, a valuation of the assets passing under the Will must first be made. Once this valuation is made, a valuation of the assets, which passed to the spouse "outside the Will" must then be made. Examples of assets, which are often passed to a surviving spouse "outside a Will" are a marital residence or bank accounts, which may have been jointly-owned by the Decedent and the surviving spouse with the right of survivorship. Other examples of assets, which are often passed to a surviving spouse "outside a Will" are life insurance and pension benefits.
Where some or all of the Decedent's assets were transferred to a revocable living trust prior to his death, the trust's assets are deemed to have passed "outside the Will". In this instance, it is necessary to review the Trust Agreement to determine the value of the trust assets and the value of the trust assets, which are being distributed to the surviving spouse. It should be observed that some Decedents set up revocable living trusts in order to avoid a probate proceeding and deny the surviving spouse his or her's "rightful share" of the Decedent's assets. If this is the case, a proceeding can be filed to recover the trust assets, and to have them included in the "probate estate", so as to give the surviving spouse the right to receive a distribution under the Will or receive 33-1/3% of the Decedent's assets.
Executors, administrators and personal representatives are obligated to maximize the value of estate assets and avoid liability for losses, which may be incurred in connection with their administration of an estate. Estate assets include commercial real estate interests, single-family and multiple-family properties, town houses, condominium apartments, co-op apartments, vacation homes, timeshares, REIT interests, interests in closely-held entities, stocks, bonds and other securities that are not publicly traded, and collectibles.
We assist local and out-of-state executors, administrators and personal representatives in connection with the valuation, sale and liquidation of estate assets. This assistance includes the preparation of inventories, where applicable; the implementation of strategies to insure that any estate sale will achieve the highest possible return; and oversee the investment of sales proceeds prior to their distribution. We also work to insure that estate taxes and obligations are promptly satisfied.
An executor or administrator of a New York estate may need to pay state and federal estate taxes.
Even if estate taxes are not owed, executors and administrators need to obtain an Employer Identification Number for the estate. If the value of the estate exceeds a certain amount, the executor or administrator will need to file a federal and state estate tax return.
Married couples with professionally prepared estate plans typically defer any estate tax liability until the death of the second spouse to die. These estate plans typically provide for the distribution of marital property to the surviving spouse "outside of probate", and defers the payment of any estate taxes until the death of the second spouse to die. When the surviving spouse dies, the estate taxes come due. Depending upon the value of the estate, the estate taxes at that time can be quite substantial. We help our clients manage the estate's tax liability upon the death of the surviving spouse, and in those instances were there is no effective estate tax planning strategy. To file estate tax returns, gift transfers must be properly documented, trust assets must be properly titled, and estate property must be properly appraised and valued. It is also necessary to ascertain whether there may be an unanticipated estate tax liability due to improper gift transfers, incomplete transfers into living trusts, or inadequate medicaid planning during the Decedent's lifetime.
When a Decedent dies, as a result of the negligence of others, the Decedent's family must deal with several pressing issues. It is essential that the family retain competent counsel to handle the administration of the estate and file a wrongful death claim. As far as the wrong death claim is concerned, it is essential that the Decedent's family retain a law firm that can maximize the amount received from a wrongful death claim. Our firm is well-suited to serve the needs of families, who find themselves in this unfortunate situation. In New York State, there are very important legal provisions, which cover the filing of wrongful death claims. If a wrongful death action is not filed by within the time provided, the family may not be able to recover any compensation at all!
Our firm is often called upon to help individuals obtain life insurance benefits and pension benefits, and access to bank accounts and other assets.
If you are the beneficiary of a life insurance policy and are having trouble obtaining life insurance proceeds, we can assist you. We also represent estates where the beneficiary of a life insurance policy has predeceased the Decedent, and the Decedent's estate is entitled to the proceeds. In some instances, there may be a dispute, as to who is entitled to receive the life insurance benefits. In other instances, there may be multiple beneficiaries, or the proceeds may need to go to a trust. There are other instances where insurance companies may delay or deny payment for a particular reason, or there are "conversion issues” that need to be addressed.
We also assist individuals, who are entitled to receive survivorship benefits from Social Security, or from a company or union pension plan.
We also assist individuals, who are having difficulty accessing joint bank accounts which provide for a "right of survivorship”, or need to access bank accounts or other account, which contain a "payable on death” provision (a "POD account). In these instances, we help these individuals assemble the documentation that is needed to access these accounts.
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Law Offices of Barton P. Levine - New York Office
260 Madison Avenue, 17th Floor
New York, NY 10016