07/23/2018










How Long Does an Executor Have to Go through Probate in NY?

An executor is a party who oversees administering an estate after the individual dies. In New York, they can invest whatever amount of time necessary to settle the estate entirely. However, the law holds exceptions. If an executor assumes his or her role but then fails to execute any of their responsibilities toward the estate, the court or a beneficiary can petition his or her removal.

Unfortunately, there is no set time for how long the executor has, because every estate is different and unique circumstances might delay the process for the executor. Typically, an executor should complete the probate process in one-year without complications and about three years when there are complications.

The Processes of Probate in Plainview, NY

To understand how long your case might take, you must understand the processes that go into probate. These are the steps the executor must go through to complete probate – and the steps you must wait through, too.

The Appointment of the Executor

After a loved one passes away, the courts must first validate the will and decide that it is authentic. During that validation, they will appoint the executor named in the will. You can expect this process to take up to a month. The executor initiates the process by submitting the will for probate. So if it takes longer, the court may penalize them for filing too late and causing financial harm to creditors and beneficiaries.

Delays in Appointing the Executor

It can take even longer to appoint an executor, depending on situations that might arise. Some issues that could delay the process include:

  • Problems with collecting documents. Sometimes loved ones are not cooperative when it comes to signing and having documents notarized. When an executor must wait on the family, the process can become much lengthier than necessary.
  • Court delays can occur. Courts take time processing documents too, which can be anywhere from four to eight weeks, depending on the status of their docket.
  • Issues with third-party hearings. Sometimes the court must appoint a third party to investigate and create a special report. This will involve two court hearings instead of one.

The Payment of Creditors

Appointing the executor is merely one step of many. Now that the executor is in place, the executor must notify all creditors named in the deceased’s will. From there, creditors are given seven months to make any claims against the estate for funds owed.

Executors are personally liable for all debts owed by the estate if he or she distributes assets from the estate before creditors are notified or have time to file their claim. Therefore, you could not expect the executor to complete this process sooner than the required seven month timeframe.

Filing Estate Tax Returns

Your executor must file all federal estate tax returns, which tend to consume the most time. A more considerable estate may fall under federal taxes for their value, and the deadline is nine months post-death. Then, after filing, the executor must wait for the IRS to approve the return and issue a closing. The executor cannot distribute assets until this process completes, which could take up to two years if issues arise in the filing.

Liquidating Assets

Another delay is that the estate might require the executor to liquidate assets. When the estate has assets harder to sell such as private shares in a business, real estate with tenants, or undesirable assets, selling them may take longer. Another example would be a family home that is in disrepair and must be first repaired, then wait for the however long it takes to sell.

Without liquidating these assets, the executor cannot move forward.

Will Contests and Accounting Contests

One of the most significant delays in probate is contests. Whether someone contests the will itself or they contest the accounting and property valuations, these cause significant delays. The estate must wait for an appointment with the court, which may take weeks or months to complete.

The executor must initiate a financial report to all beneficiaries that detail the transactions and any financial activities of the estate. This is one of the last steps before they can close it out and distribute assets. All it takes is for one beneficiary to disagree with that financial report and contest it. From there, the court must determine the accuracy of the accounting statement. This process alone could take up to one year.

The Bottom Line

There are numerous ways to delay the closing of an estate. While sometimes it could be the fault of the executor, most of the time it is out of their control. If you suspect that your executor is purposely delaying or not doing their fiduciary duty, then you should speak with an attorney to explore your options.

Working with a Qualified Attorney Can Help

Whether you need help as the executor of an estate or you would like to draft an estate plan that helps streamline the process, working with a qualified estate planning attorney in New York is your best option.

For assistance with your estate or the probate process, contact the Law Office of Andrew M. Lamkin, P.C., today at 516-605-0625 or you may contact us online. We offer free, no-obligation consultations.

Are Probate Records Public Records?

signing willProbate court is a legal process that follows a person’s death. It goes through various stages to help settle the estate, handle any outstanding debts, and distribute assets to named beneficiaries.

Probate records are public records. These include everything from a will to estate inventories, letters of administration, and any document related to the estate’s administration and settlement. These records also contain information on the deceased, identities of the heirs, and any legal actions associated with the estate. They are available via public databases through each state, and the courts are typically held by the state’s court archives.

What Types of Probate Records are Kept in Plainview, New York

Each state has a system for what records they keep and what can be accessed. In New York, the following probate records are part of the public search:

  • Surrogate Court Records: After May 1787, all county surrogate courts have their probate records on file. There is a complicated index for these records, and if you need to search, the surrogate’s court is usually the first place you will be directed to.
  • Probate Packets: Probate packets are the entire estate file. These have copies of the documents related to the estate’s settlement, including administration, inventories, and bonds.

How Do People Access Probate Records?

Receiving a copy of the deceased’s last will or other probate records is relatively easy because these are private documents available to the public. Probate files are part of the court record, and copies are available for a small fee. Sometimes you can access an entire person’s estate online – without a fee at all.

While you do not have access to the exact details of the will, you can review other documents including the name of the executor, heirs, attorneys of record, and the judge that oversaw the case. Some court records will also provide access to all names and contact information for creditors, beneficiaries, and allow copies of those documents.

What if I Do Not Want My Court Records Publicized

Unfortunately, the only way to avoid having your entire estate a matter of public record is to plan early on. Probate court is an open process, and anyone could review these records to determine how much your estate was worth – and some documents tell what beneficiaries inherited and how much. Because most people would rather keep their probate records private – and protect beneficiaries – the first step to avoiding this is to not go through probate.

Any time an asset is passed through a will, it is subject to probate. Probate is not only a hassle because your information is now public, but it is expensive and time-consuming – and entirely unnecessary for a modern estate.

Why Work to Avoid Probate?

Probate is expensive and lengthy. Therefore, your beneficiaries will not receive their inheritances right away, and probate courts typically cost five to 10 percent of the value of the estate assets. Some estates take up to one year to process through – and if there are any will contest they can take much longer.

You have designed an estate plan to protect loved ones and ensure they are taken care of; therefore, your last step is to help them avoid probate entirely.

If you think it is not an issue to have your estate a matter of public record, consider this: after probate is filed, any creditor can look up the estate and start petitioning the court for money. Therefore, the amount your beneficiaries receive can decrease even further. The process of fighting these claims will drain the estate and put an unnecessary burden on your loved ones as well.

You do not have to go through probate – so why bother?

Instead, you can speak with an attorney and work to avoid the entire hassle and cost of the probate process – and protect your loved ones.

Creative Tools that Are Effective in Avoiding Probate

No estate is required to go through probate, but to do that you must implement a variety of tools. Some of the more preferred ways to do this include:

  • Revocable Living Trust: This is the more popular method for avoiding probate. You establish a trust, control assets while alive, and then the assets are distributed probate-free upon your death.
  • Creating Beneficiary Deeds: A beneficiary deed is a real estate document that allows you to transfer property, like your family home, upon your death. The transfer takes place, and there is no reason for probate. You can send it to any jointly owned property, such as a home you share with your spouse.
  • Transfer Upon Death (TOD) Designations: You can also use the transfer-on-death designation through your personal property like vehicles, trailers, motorcycles, and other personal items. There are limitations on what property you can legally TOD; therefore, speak with an attorney.
  • Payable Upon Death: These designations are tied to financial accounts, such as life insurance, retirement accounts, and bank accounts. You can pick a beneficiary, and the institution that oversees the asset would automatically transfer upon your dearth.

Hiring an Attorney is the Best Option

If you truly want to avoid probate, you have a few options, but not all will apply to your situation. Therefore, the best place to start is by contacting an attorney in the area and exploring your options. An attorney, like the Law Office of Andrew M. Lamkin, P.C., will go over the options you have, your estate, and find the best way to transfer assets to loved ones all without becoming a public record in surrogate’s court.

Schedule a free consultation today by calling 516-605-0625 or request more information online.

Do Retirement Accounts Pass through Probate?

couple meeting with probate attorneyAfter a loved one dies, you may find yourself wondering how all the deceased’s assets are handled, and whether all assets go through probate. You are already dealing with the emotional trauma of losing a loved one, but now you are also absorbing the financial shock of your loss. You may wonder if your loved one’s retirement accounts will pass over to you without having to wait months for the probate court to work through your loved one’s estate plan, and pass down assets to the beneficiaries.

Do Retirement Accounts Go through Probate in Plainview, NY?

Probate court is an official process that ensures all assets are frozen from a deceased until they are validated, and the proper beneficiaries located. It is a way to protect beneficiaries from having assets taken from them.

The process typically happens in a few months, but for some beneficiaries, it can feel like a lifetime. A beneficiary may wait even longer if the will is contested or there is any difficulty locating assets named in the estate plan. However, in most cases the probate process will be complete approximately one year after the death.

When it comes to retirement accounts, most do not go through probate. Instead, they pass outside of probate. This includes the typical retirement accounts like:

  • IRAs
  • 401(k)
  • 403(b)
  • Roth IRAs

When you open a retirement account, the paperwork you complete includes naming a beneficiary for your account. You can name just one beneficiary or multiple. Then, when you pass away, the party that manages the retirement account will hand over the assets to the heirs named. There is no need to go through probate because the contract created at the time you make your retirement account is enough to satisfy passing the funds over immediately.

Also, because retirement accounts do not go through probate, your loved ones will not lose their assets to creditors. Creditors can only request payment from assets that pass-through probate court; therefore, the money in a retirement account will be given directly to the beneficiaries.

Common Mistakes When Naming Retirement Beneficiaries

Whether you are creating a new retirement account, or you want to revisit your beneficiaries on current accounts, it is essential that you do it right. There are ways that a retirement account will be sent to the probate court, especially when the paperwork is not completed correctly.

Therefore, make sure your retirement account does not have any of these issues:

  1. Not naming a spouse as the beneficiary. You are not required to designate a spouse as your beneficiary, but if you live in a community property state, you would need to. Luckily, New York is not a community property state. Therefore, if you do not wish to name your spouse, you are not legally obligated to do so. However, if you live in a community property state, your spouse is legally entitled to half of anything you have added to that account since you marry. Therefore, they could petition the courts and the retirement account would be forced to filter through probate before the funds are distributed.
  2. Naming your estate or trust as the beneficiary. You might think that it will save time and hassle naming a trust or your estate as a whole as the beneficiary, but then any funds distributed through the estate must go to probate court. Therefore, your loved ones will have to wait for probate to complete before they can receive any funds from your retirement account. Also, creditors can take their share of the retirement account before your loved ones receive their inheritance.
  3. Naming a minor as your retirement account beneficiary. Minors cannot legally inherit. So if you name a minor as beneficiary, the funds will be sent through probate so that a trust (or another designated account) can be set up to hold the funds until that minor comes of age. Knowing this, if you would still like to name a minor, you need to set up an account that manages the money for that minor under the Uniform Transfers to Minors Act (UTMA). Any financial advisor can handle this for you.
  4. Not naming an alternative beneficiary. If you name one heir, but they are unable to accept the inheritance, then your assets from retirement accounts would have to go to probate so that the judge could decide who inherits the account. Always name at least one alternative so that you avoid this.
  5. Not revisiting your beneficiary designations and updating them. It is imperative that you look over your designations at least once a year to make sure they are accurate. For example, if you were to divorce and not name your new spouse or an adult child as the beneficiary, then your ex-spouse would receive your retirement account assets, even if you have been divorced for several years.

Speak with an Estate Planning Attorney in New York to Handle Your Retirement Accounts Properly

Whether you have one retirement account, are just entering your career field, or you are creating a retirement account for the first time, it is essential that you designate your beneficiaries correctly. Let the Law Office of Andrew M. Lamkin, P.C. help you do that. We not only help you protect your retirement account assets, but we can establish an estate plan so that your loved ones are taken care of when you pass away.

You can avoid the hassles of probate by having a well-written estate plan, or we can examine your options for a trust, which allows you to bypass probate court altogether.
To explore your options, schedule a no-obligation consultation today at 516-605-0625, or you can request an appointment online.

10 Things to Know about Probate Court in New York

probate courtWhen a loved one dies leaving a will, you must go through the legal process known as probate. Probate is only required in the state of New York when your loved one’s assets total more than $30,000 in value.

If the assets total over $30,000, then you will go through the stages of probate, and eventually, the estate will be distributed in accordance with the will. While the process sounds straightforward, there is plenty to know about probate court. Also, if you have not hired an attorney to help you probate the estate, it is in your best interest to do so. An attorney can help navigate through this complicated process, advise you of your rights and ensure you do not have unnecessary delays.

10 Facts to Know about the Probate Process in Plainview, New York

Most people going through probate will be first-timers. Therefore, you have plenty of questions that you want to be answered and you may have numerous steps to go through before everything is completed and you can move forward.

Here are just a few facts to know while you wait to meet with a probate attorney.

Fact 1: Probate is Not Free

Probate does cost money, but the cost associated with your proceeding varies depending on the complexity of the case and the value of the estate itself. Your filing fee with the Surrogate Court is based solely on value. For example, if your loved one’s property ranges from $10,000 to $20,000 then you would pay only $75. If their estate is valued at $500,000 at over, then you would have a $1,250 fee as of 2017.

Legal fees are based solely on the attorney you hire. There are no set costs in the state of New York; therefore, you can work out the costs with your attorney. Most attorneys offer three types of charges for probate:

  • Flat rate
  • Hourly
  • Percentage

The more complex the case, the higher the price will be. If you have a relatively simple probate case, your attorney is more likely to charge a flat fee.

Fact 2: You Need a Copy of the Death Certificate to File

You must have a death certificate to file your loved ones will with the state’s Surrogate Court. To get this, you can get a certified copy from the Office of Vital Records – if your loved one died in New York City. If the death was outside of the city, but still within the state, you can request one from the New York State Department of Health. For deaths outside of the city, you must contact that state’s vital records office and request a copy.

Fact 3: Only the Executor Can File for Probate

To get the process started, the executor must take the original will and a certified copy of the death certificate, then file a probate petition along with other documents to the Surrogate’s Court. The probate court the executor files with must be in the county where the deceased’s primary residence was located.

Some areas accept filings over the web through the NYSCEF portal (New York State Courts Electronic Filing System).

Fact 4: You Don’t Need an Attorney, but Should Hire One

Realize that you are not required to hire an attorney. If you feel confident doing probate yourself, the courts will allow you to do so. However, you may find it easier to hire an attorney to handle probate matters, because often complications arise during probate and you need an advocate to find interested parties, handle a will contest, and complete the paperwork.

Fact 5: Executors Must Notify Immediate Family of the Death

Typically, the executor is required to notify all immediate family members of the death and probate, even if they are not named in the will. A formal notice of the probate proceeding must be given to anyone named in the will and to all heirs. Heirs at law are the deceased’s surviving spouse, children, and grandchildren, and must receive a notification.

Fact 6: Notice to Creditors

Before an estate can go through probate, the courts require that the executor search for all files and find any outstanding loans or unpaid obligations for the deceased. Even if there are no creditors, the executor is required to file a Notice to Creditors in the local newspaper, then allow adequate time for creditors to apply and make claims against the estate.

Fact 7: Not all Property Goes through Probate

Many are surprised to find out that not all property goes through probate. Any property that is titled in a revocable living trust will skip over probate entirely. Also, accounts with beneficiary designations and any real estate subject to a transfer-on-death can skip probate. Lastly, a property that is owned through joint tenancy passes automatically to the other spouse without probate.

Fact 8: Probate is Necessary, but Can be Avoided

There are ways to avoid probate entirely, especially if your loved one has created a trust and transferred all assets into that trust.

Regardless, the process of probate is there to ensure that all property and assets are transferred to the correct beneficiaries. While it might seem like a hassle, it is the state’s way of ensuring that the deceased’s final wishes are carried out and that no beneficiary loses their inheritance.

Fact 9: Probate Can Take Longer than Expected

While the Surrogate’s Court of New York estimates probate to last a few weeks, they are not considering how some estates are more complicated than others. In fact, most estates will find that probate takes several months even to begin and a few more months to complete itself, even without complications. When there are contests and other disputes, the process could easily take over one year to complete – if not longer.

Fact 10: Probate is Public Record

Family information is not private when it comes to probate. Instead, personal information, including identities of beneficiaries and the executor is a matter of public record. Also, the liabilities and assets of the estate are published in public records and accessible by those who request them from the clerk’s office.

Speak with an Attorney about Your Probate Process

If you are the executor of an estate or you want to help your loved ones avoid the hassles of probate, speak with an estate planning attorney today. The Law Offices of Andrew M. Lamkin, P.C. can help you with your estate planning needs and when you need an attorney to help you through probate.

To explore your options, speak with an attorney by calling 516-605-0625.  You may also request a free, no-obligation consultation by messaging our team online.

Exploring the Probate Process of New York

probateProbate is a process that settles an estate under the supervision of the court.

First, a person (usually a spouse or adult child) is appointed in the deceased’s will or by the court to oversee the process and take all necessary steps to close out the estate, pay all debts associated with it, and distribute assets to beneficiaries (if any).

Why Does Probate Exist in Plainview, NY?

Probate prevents fraud after a person’s death. It ensures that family members do not steal assets from other eligible family members and to ensure that the deceased’s will is valid and not forged.

In the state of New York, a will only need to be probated if the deceased has an estate with assets valuing $30,000 or more. Before the will can go into effect, the will is submitted by the Surrogate’s Court, and the court will determine if the will is valid.

What Makes a Will Valid?

For a will to be valid in New York, it must be signed by the deceased in front of two witnesses, and these witnesses must sign the will in front of two non-participating parties. The person making the will must be competent and of sound mind to sign the will. They cannot sign the will under duress or undue influence; otherwise, the will is considered invalid.

If any party feels that the will is invalid, they can present their argument to the court. This is known as a will contest.

How Long Does Probate Take?

Probate can take a few months to a few years. If the will is contested, the probate process becomes longer.

Regardless, family members are urged to wait at least seven months before closing out probate. This is because the state issues a seven-month timeline where creditors can make claims against the estate. Therefore, you cannot close out the estate until all creditors have been satisfied or given a chance to file a claim.

Seven months is the shortest amount of time to probate a will, but some may take up to three years or longer. The length increases if loved ones do not agree, or if the executor of the estate takes too long to close out the will.

Is There a Maximum Timeframe Probate Can Take?

The courts demand that probate finish in a reasonable amount of time, but what is “reasonable” to the court depends on the circumstances of each case. Any time there is a disagreement, this prolongs the process.

If probate is taking too long, a beneficiary can petition the court or file a lawsuit demanding that the estate close out.

Deadlines for Filing a Will and Probating a Will

There is no deadline to file a will for probate in New York, but it should be done as quickly as possible after the death. If the will is not filed for probate in a reasonable amount of time, a beneficiary or creditor will be disadvantaged. Hence, the courts will penalize any holders for depriving an heir or creditor.

Executor Fees

Executors are entitled to fees for their time, known as commissions. Commissions are based on the value of the estate based on a specific schedule.

For example, the first five percent of the first $100,000.

If the executor is a beneficiary of the will, then they are urged to waive their commission so that they can save on income tax.

An Example of a Probate Timeline

  • Months 1 to 3: During this time the will is read, and the personal representative is named. The executor must obtain death certificates, get all consents and waivers in order, and then file a petition with the Surrogate’s Court to start probate.
  • Months 3 to 6: Now the executor starts their job. They will take an inventory of the estate, make a list of creditors owed, open any safe deposit boxes, notify creditors of the death, and consult with an accountant for any estate taxes. The accountant then prepares a final tax return for the estate and files a Federal Estate Tax return using Form 706.
  • Month 6: The official inventory of all assets is filed with the court, then the assets are appraised.
  • Months 7 to 8: The executor now decides what property should be sold, and what assets are distributed to beneficiaries based on the estate plan.
  • Months 8 to 9: All creditor claims were filed no later than the seventh month; and now the executor must satisfy those claims. Any applicable tax bills must also be paid. Then, a final accounting is submitted to the Surrogate’s Court, and the Beneficiary Agreement is made.
  • Months 9 to 11: At this point, assets should be distributed to beneficiaries, then the executor files a petition to be discharged from their role as executor. At this point, the estate is closed out, and probate is completed.

The Benefits of Using a Probate Attorney

As you can see, an executor must take on numerous tasks – some of which require completing legal documents, negotiating with creditors, and defending a will in court if there is a contest.

Having an attorney to help with the probate process is best because that attorney will be able to help you through the complicated legal procedures of probate. Furthermore, if a party contests the will, you need to have an attorney ready to defend the estate and ensure the probate process is not delayed too long.

Hire a New York Probate Attorney

If you have lost a loved one and now are burdened with the task of settling the estate, speak with someone from the Law Office of Andrew M. Lamkin, P.C.

We understand how time-consuming and stressful probate can be. We want to help you through the process and hopefully speed up the settlement so that you do not have to wait years to close out what should take only months.

Schedule a free, no-obligation consultation now at 516-605-0625, or request more information online.

Ways to Avoid the Time and Expense of Probate Court

Hiring an Elder Law Attorney can Prevent the Expense of Probate Court for Families in Long Island, NY

probate paperworkEveryone wants to pass on something to their children or other family members. You want everything that you have saved to go to those you love. The last thing you want is to give what you have worked so hard for to the government by paying out numerous probate fees. Even more so, you don’t want your family members to wait months (in some cases, years) to receive their inheritance.

Avoiding the issues of probate court (along with the costs) is much easier than you might realize. With the help of an estate planning attorney in Long Island, NY, you have a few options at your disposal.

Top Three Ways to Avoid Probate Court

1. Create a Living Trust

The easiest and most common way to avoid probate court is to establish a living trust. A living trust is the alternative to a living will. A living will distributes your assets upon death, but a living trust holds the assets and property in the trust. The trustee who manages these assets is someone whom you select, and the trustee works for the benefit of your beneficiaries.

A living trust avoids probate, because your assets are owned and distributed by the trust – not your estate. There is no need to probate a will with a living trust, which saves your beneficiaries an extensive amount of money and time.

2. Naming Beneficiaries on Designation Forms

When you create a new bank account, sign up for a retirement account, or another financial account, you are handed a designation form. In this designation form, you pick a person to inherit the account in the event of your death.

A living will does not handle these types of accounts; therefore, these items would not pass through probate court if they had designation forms already completed. The bank account you have open now most likely has a beneficiary designation; so, it is in your best interest to review that designation and ensure that the person whom you selected is still the desired recipient.

Many people do not take the time to name a beneficiary for their bank accounts. It only takes a few seconds. If you have not named anyone, visit the financial institution where you bank or have retirement and investment accounts and designate someone.

3. Joint Tenancy with a Right of Survivorship

Another way to avoid sending real estate through probate is to hold that property jointly. You can do this with a significant other or a spouse. Owning the property jointly allows it to pass to your spouse or partner automatically upon your death.

If the property is not defined in ownership clearly, however, you may not be able to pass it to a spouse. It is best to consult with an attorney before assuming your family home or any real estate you own can be passed this way, because some state laws specifically prohibit such actions.

Contact an Estate Planning Attorney in Long Island Today

If you want to avoid the pitfalls and costs of probate court, speak with an estate planning attorney. An attorney can review your estate and suggest cost-saving methods for avoiding probate. Schedule a consultation today with the Law Office of Andrew M. Lamkin, P.C. by calling 516-605-0625 or request an appointment online.

Three Easy and Effective Ways to Avoid Probate in New York

probateProbate can be slow and costly, tying up your estate for months or even years, and consuming a substantial amount of the estate that you intend to leave for your loved ones. But it does not necessarily have to be this way. There are several simple steps that can be taken to bypass probate, and ensure that a greater portion of your estate passes on directly to your loved ones without lengthy complications and expensive legal fees.

Probate in New York

When a person dies, something has to be done with the estate (assets and debts) that the decedent leaves behind. Probate – which is based on the Latin word “probo,” meaning to prove – is the legal process of finalizing a person’s estate after he or she has died. It includes the following activities:

  • Verifying the validity of the decedent’s will
  • Taking inventory of the decedent’s assets
  • Having the decedent’s property appraised
  • Paying off any debts and taxes
  • Distributing the remaining proceeds according to the decedent’s will or New York intestate law.

Probate is presided over by the executor, who is named in the decedent’s will, and often requires the help of an experienced probate attorney. The process can typically last for several months to a year, and can be notably expensive and time-consuming for the decedent’s survivors.

To ease the burden on their survivors, many people make plans to enable their estates to avoid probate. But, this can also be time-consuming and expensive. Whether or not it makes sense for you to make complex probate avoidance decisions will depend on your age, health, and the overall size of your estate.

Avoiding Probate in New York

There is rarely any need for young, healthy people to involve themselves in complex plans to avoid probate, as they will only have to redo it later in life in order to reflect the many changes that will have occurred. On the other hand, if you are older, in poor health, or have a sizable estate, you may want to do whatever you can to save your family the trouble and expense of having your estate go through probate.

There are several different ways to avoid probate. Here is a list of the easiest and most-effective ways to do so in New York:

1. Joint Ownership

When you and your spouse own assets together, the assets will most likely pass on to the other without going through probate when the first spouse dies. Check to make sure that the title to your property is held jointly, and in the proper manner, according to New York property law.

2. Naming Beneficiaries for Pay-On-Death and Transfer-On-Death Designations

Pay-On-Death (POD) designations can be added to bank accounts and certificates of deposits in order to have funds transferred directly to a beneficiary upon your death, thereby bypassing probate. The same thing can be done for securities and mutual funds by simply adding a Transfer-On-Death (TOD) beneficiary to your brokerage account.

3. A Revocable Living Trust

Creating a living trust, which is no more complicated than creating a will, is one of the most popular ways of avoiding probate. Once you create the trust, you can hold property in trust without having to relinquish any control and without any tax consequences. Upon your death, the property in the trust can be distributed by the person who you name as your trustee to whomever you name as a beneficiary – without the need for probate. Once all property in the trust has been distributed, the trust will cease to exist.

Contact a Long Island Probate Lawyer Today

Probate law is complex; there are a variety of things that can go wrong if you attempt to navigate the law without the help of an attorney. Therefore, as you take steps to avoid probate, it would be in your best interest to draw upon the knowledge of an experienced probate lawyer. He or she can help you avoid tax and probate consequences, and ensure that your heirs inherit as much of your estate as they are entitled to, without lengthy complications and expensive legal fees.
Call the Law Office of Andrew M. Lamkin P.C. at 516-605-0625 or contact me online to schedule an appointment with an experienced Long Island, NY probate attorney. I am available to meet with you at your home or my office, and would be happy to discuss the specific options available to you.

How the New York Probate Process Works

Long Island Probate Lawyer - Law Office of Andrew M. Lamkin, P.C.It is very likely that at some point in your life you will be involved in the probate process as either an executor, administrator, beneficiary or heir.

Understanding how New York’s probate process works will be useful when it is time for you to create your own estate plan.

What is Probate?

Probate is the legal process that takes place after a person dies to prove their Will and to dispose of their estate.

Probate can take a long time and cost a lot of money for the family of the deceased, therefore, individuals often take measures to enable their estates to avoid probate and save their families time and money.

Why is Probate Necessary?

Big or small, almost everyone has an estate and leaves behind some assets when they die.

Probate laws ensure the following:

  1. Assets will be transferred to the right individual(s) after they die.
  2. Creditors will be paid off
  3. The decedent’s last Will and Testament is valid

Testate or Intestate

If the decedent left a valid Will behind, the estate is considered testate.

If no valid Will was created before the decedent’s death, the estate is intestate.

For testate estates, the decedent’s Will determines how the assets are to be distributed.

If the estate is intestate, distribution of the estate will be determined by New York’s Intestate Succession Laws.

How Probate Is Started

After the decedent’s death, his or her family members will look to see if there was a last Will and Testament left behind. If they find one, the person named as the executor will file a petition to open probate.

If no Will is found, a family member will usually file a petition to open probate and request to be appointed an administrator of the decedent’s estate.

The petition to open probate must be filed in the surrogate court in the county in which the decedent was a resident at the time of his or her death.

Executor vs. Administrator

The duties of the executor or administrator, both of whom must be officially appointed by the court, are exactly the same. Probate involves some complex legal issues, so an attorney is usually hired also to assist the executor/administrator in performing the following duties.

With regards to estate assets, theses duties include:

  • Locating, securing and taking inventory of all assets
  • Having the assets appraised
  • Filing an inventory of assets with the court

With regards to claims against the estate from creditors, the executor/administrator’s duties involve:

  • Determining which creditors have a claim against the estate
  • Notifying all creditors of the probate
  • Paying the creditors from the estate

Will Contest
The executor/administrator also has a duty to defend the decedent’s Will in court.

Sometimes someone challenges the decedent’s Will, in what is known as Will contest.

This can only be done on the basis of something like fraud, or incapacity of the decedent at the time the Will was created, not simply because they are unhappy with their gift or inheritance.

If, however, the Will contest is successful and the decedent’s Will is invalidated, the court will look for a previous valid Will with which to probate the estate. If no previous valid Will can be found, the estate will be probated as intestate and in accordance with state intestate succession laws.

Beneficiary or Heir
Once all estate property has been accounted for, all creditors have been paid and all contests have been dealt with, the executor or administrator must prepare and pay any taxes due on the estate.

After that, all remaining assets must be transferred to the rightful beneficiaries or heirs; the only difference between the two being that beneficiaries are named in the Will, while heirs are decided by the court in accordance with state intestate succession laws.

Probate for Small Estates

The probate process can take months or even years and can cost a significant amount of money, so for estates with assets under $30,000 and/or where the decedent owned no real property, or jointly owned real property with someone else for which there was no plan to sell, there is the option of filing a “small estate affidavit” to avoid the formal probate process.

Contact a Long Island Probate Lawyer Today

Call 516-605-0625 or contact me online to schedule an appointment with an experienced Long Island, NY Probate Attorney. I am available to meet with you at your home or my office.

The Importance of a Power of Attorney

A power of attorney is a written document designed to allow someone of your choosing, an agent, to make legal decisions on your behalf in the event that you are incapacitated and unable to do so. Though establishing a power of attorney may seem like a project for a rainy day, there is no better time to address the matter than the present. A carefully considered power of attorney can give you the peace of mind that your wishes will be respected even if you are not able to voice them yourself.

Powers of Attorney

Depending on your specific needs, there are three types of power of attorney generally used. All provide you with the freedom to appoint someone as your agent and dictate the terms of that person’s role in managing your legal decisions. The common types of powers of attorney include the following:

  • A conventional power of attorney remains effective from the time you sign the document until you are deemed incapacitated.
  • A durable power of attorney remains in effect from the time you sign the document and during your lifetime.
  • A springing power of attorney goes into effect once a specific event has occurred, such as becoming incapacitated.

The Importance of Powers of Attorney

One of the more critical aspects of estate planning is understanding that a power of attorney can ensure that your voice is heard even when your ability to speak has been compromised. By placing this responsibility for carrying out your wishes in the hands of the most trustworthy person available, you are taking measures to ensure that certain legalities do not become an issue during a time that complications are least welcome.

Aside from the importance of having your wishes honored, a power of attorney saves families from facing medical and legal decision-making that may cause emotional anguish or uncertainty, or create relationship discord when family members disagree with how a situation should be handled. Matters that a power of attorney can address include:

  • Do-Not-Resuscitate orders (DNRs)
  • Acceptable medical interventions
  • Life-sustaining measures such as artificial feeding
  • Buying or selling real estate
  • Management financial affairs
  • Entering into contracts or business negotiations

The Bottom Line

The purpose behind estate planning is to make certain that matters are handled to your preference if you are unable to actively make sound decisions. The power of attorney is key for making this possible. Your agent will exercise the authority to make decisions on your behalf based on your individual preferences. Thus, the power of attorney removes the guesswork concerning your wishes once your family is faced with important decisions regarding your medical care and financial affairs.

If you are ready to move forward with a power of attorney, Andrew M. Lamkin is able to see that your individual needs are addressed. Call or use our contact form to contact Andrew M. Lamkin today. He will make sure your voice is heard.

5 Simple Ways to Avoid Probate

Probate fees can be excessive depending on the state in which you live. States may require that individuals pay 5-15% of their total estate for probate fees. Because of the high costs that can be attached to fees, it is to your advantage to avoid probate.

1. Create a revocable trust.

A revocable trust is an instrument that you can use to directly bypass the probate procedure. In some states, you may even be able to serve as the grantor and trustee of the trust. This means that you would be able to determine how to distribute your assets and also administer the trust throughout your lifetime. With a revocable trust, you can also elect to make discretionary distributions of income to beneficiaries throughout your lifetime. An estate planning lawyer can help you in the process of distributing assets so that you minimize tax implications for your estate.

2. Create gifts of your assets throughout your life.

Creating a gift of your assets is also another easy way to forego the probate process. If you decide to make a gift to charity, then this could be one way that you minimize taxes for your estate. A charitable gift deduction enables you to write-off the gifts that you make to charities. You may also choose to make a gift to a beneficiary through a retirement plan or IRA. This will also enable you to transfer gifts to beneficiaries without the hassle of probate.

3. Title your assets in a wise manner to avoid probate.

You may want to be conscious of certain protections that may exist in your state. For example, Florida has a homestead exemption that enables a spouse to claim a life estate in a home that was used as a primary residence of the spouses throughout their lives. Otherwise, spouses may hold property under a tenancy by the entirety arrangement. This type of arrangement also ensures that a spouse has a full right of survivorship in a piece of property upon the other spouse’s death.

4. Ensure that you have designated beneficiaries for life insurance policies.

Some individuals make the mistake of failing or forgetting to name beneficiaries on a life insurance policy. If you forget to name a beneficiary on a life insurance policy, then creditors may be able to attach the proceeds of the plan. Ensuring that there is a named beneficiary on your plan will help keep proceeds within the estate.

5. Prepare the division of your assets ahead of time.

Taking some time to seriously consider the distribution of your assets ahead of time pays off in the long run. By preparing a trust or pour-over will document, you can avoid probate and maximize the value of your estate.

Sources:
http://money.msn.com/retirement-plan/how-to-die-the-right-way-kiplingers-personal-finance-magazine?page=2
http://www.fool.com/personal-finance/taxes/the-truth-about-living-trusts.aspx



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