December 15, 2019










Do Bank Accounts with Beneficiaries Have to Go through Probate?

Probate is a normal process that occurs after someone passes away, and the courts verify that their assets are distributed to the proper parties. Some assets, such as insurance policies and retirement accounts, do not have to go through probate. That is because these assets usually have a designated beneficiary who is named at the time the account is created.

Anytime you have an account with a named beneficiary, special rules apply. Now, not all assets with a named beneficiary skip probate. Therefore, if you are estate planning or you are an executor reviewing the law, it is best to speak with an estate planning attorney to see how named beneficiaries apply to your assets.

How Are Bank Accounts Distributed?

How your bank accounts pass at death will depend on the type of setup you chose when you initiated the account. It will also depend on whether you were the sole owner of the account, if you signed a payable on death document, and whether there are any applicable challenges to your named beneficiaries.

Bank Accounts with You as the Sole Owner

If you own a bank account that is in your name only, you might have had the option to sign a document designating a beneficiary for your account upon death. If, however, you do not sign a designation document, then your bank account funds would go through probate. The court would use the standard estate laws to determine who would receive the funds from your account along with the designations you have made in your will.

Therefore, this is an instance where bank accounts would go through probate court before funds are distributed.

Bank Accounts with a Named Beneficiary on a Payable-on-Death Document

Most financial institutions make the payable on death document optional. It is advisable that you pick someone when you create your account, and make sure that you update that document throughout your lifetime, especially if your beneficiary has changed. When you have a signed beneficiary document, the funds will not go through probate. Instead, that money is no longer part of your estate. The funds in the account will be transferred to the beneficiary you named on the document automatically.

To claim the funds, the beneficiary would need to go to the financial institution with current identification and a death certificate. The bank will already have the beneficiary designation form on file. They will verify that the person claiming to be your beneficiary is the correct party, and then they will transfer the funds into their name.

As you can see, it is essential to review your beneficiary designations. If you do not update this form, your funds will automatically transfer to someone that you may no longer wish to inherit your funds. If you cannot recall the party you designated when you opened your bank account, you can visit your financial institution in person and request a copy of the beneficiary designation form. You can then update it to a more recent beneficiary if you wish to do so. The beneficiary designation form overrides your final will. So, even if your will designate a different party, the bank honors the form instead.

Bank Accounts That Are Jointly Owned

Joint bank accounts are complicated. If you have a joint account with someone and one of the parties dies, usually the surviving joint owner automatically becomes the sole owner of the bank account. In this case, the account would not go through probate court. However, there are instances where the funds may go through probate court, or there may be a contest against who is the rightful owner of those funds.

Right of Survivorship Issues

When a bank account has two names owning the funds of that account, it is called a right of survivorship. That means, when one party dies, the surviving owner becomes the sole owner. Usually it is clear which party is the sole owner after the other party passes away. If, however, there are more than two parties, it may complicate determining how the funds will be distributed.

When Someone Contests the Joint Ownership

In most cases, when a couple owns a joint bank account, it is unlikely anyone would argue that someone else is entitled to the funds when one party passes away. However, there are instances where other family members or beneficiaries of the estate may argue that the other joint owner is not the intended beneficiary on the account. In this case, they would need to petition the court and have a hearing to determine the rightful owner of the funds.

Bank Accounts Held by a Trust

Another type of bank account that does not go through probate court is a bank account held by a living trust. When you set up a living trust, you pass overall assets to your trust and your trust is now the owner of those assets rather than yourself. All assets in your trust bypass probate court. If you have a lot of high-value assets and you want to save your family the hassle of dealing with probate court, creating a trust is most likely the best route for you and your loved ones.

Speak with a Local Estate Planning Attorney First – before You Assume Accounts Will Not Go through Probate

As you can see, there are plenty of instances where a bank account will not go through probate and other cases in which it will go through probate. Therefore, the only true way to see which bank accounts go to probate court and which do not is to speak with a local attorney in your area. An attorney can review the law, review any beneficiary designations, and then decide which accounts are likely to go through probate and which will automatically pass to the named beneficiary.

To explore your options, especially when it comes to protecting loved ones and ensuring bank account funds are distributed as you intended, contact attorney Andrew M. Lamkin, P.C. for a free case evaluation. Call 516-605-0625 to schedule now or contact us online with your questions.

Is Probate Necessary If There Is a Trust?

Probate requires that property you own goes through the court before it can be distributed. When you create a trust, you no longer own the property because you transfer ownership into your trust. Therefore, probate is not necessary. If, however, you leave a piece of property out of the trust, your loved ones may have to continue through probate even if you created a trust for your other assets.

One of the primary reasons to create a trust is to avoid probate court. Trusts are surprisingly easy to create, especially if you work alongside a skilled estate planning attorney. While they do take a little setup time and some work on your end to move over your assets, once you are done, your family will no longer have to worry about going to probate court or worrying about spending countless fees on attorney and court costs to finalize the estate.

How Does a Trust Help Avoid Probate?

When you own property in your name, that property must go through probate court. The court verifies the validity of your will, the property amount, and makes sure that it goes to the proper party (per your will). The process can take anywhere from six weeks to six months, making loved ones wait to receive inheritances.

With a trust, you no longer own the property. While it is technically yours, the property is now owned by your trust and you are named the primary trustee. Now that you no longer personally own that property, probate court does not apply. From there, your trust automatically would transfer ownership to your beneficiaries, per your designation, upon your death. Also, a trust does not end when you pass away. Instead, it serves as a legacy, and it can continue on long after you pass away.

With your attorney’s help, you will name an administrative trustee. This party has the legal authority to step in on your behalf after death. They will administer your trust per any instructions you have left behind, and they will take control of the trust, assets, and any business interests you might have. They may also collect from retirement accounts, life insurance policies, and pay any outstanding debts using assets (including those from the trust) before distributing the rest to your beneficiaries.

When a Trust Does Not Help You Avoid Probate

The purpose of a trust is to make the process of resolving your estate easy and relatively cost-free for loved ones. However, it does not always prevent loved ones from enduring probate court, especially if your trust is not created correctly or you are missing assets.

When you form the revocable living trust, you must transfer ownership of the property into the name of the trust. Often, this is the biggest reason a family with a trust still goes through probate – because no one transferred the ownership. Also, any property you purchase after your trust is created must be moved into the trust or it will go through probate even if the remainder of your estate does not.

Just because you have a trust does not mean all new asset acquisitions go through it. Instead, you still must update the trust and physically transfer ownership over to it. Therefore, you should make it a habit to automatically transfer over any assets you purchase into your revocable trust as soon as you can. This may mean transferring assets on a monthly basis, depending on how often you acquire new assets.

Do You Really Need to Avoid Probate?

Probate is an in-depth process that can take weeks or months to complete. While it is in process, loved ones cannot receive their inheritance and they may have to spend estate funds to cover attorney’s fees, court costs, and more.

Just some of the stages your estate goes through if it does pass through probate include:

  • Your will is first filed with the local probate court and now becomes a matter of public record.
  • Your named executor will then inventory property and assets associated with the estate.
  • Your property is appraised by a third party to determine current value.
  • Your estate’s debts, including your final taxes due, are paid by the executor. Some assets may be sold in order to satisfy those debts.
  • The court finally validates the will.
  • All fees to the court, attorney, and the executor are paid.
  • Any remaining assets are distributed to the designated beneficiaries in the amounts (or close to) that were listed in the will itself.

A living trust bypasses these steps. Your assets are passed from one party to another from the trust, and the court does not require an appraisal or have to approve the passing of those assets.

Hire an Attorney to Help Your Estate Pass over Probate Court Entirely

The best way to avoid probate is to hire an attorney and have them create a trust for your loved ones. Trusts are not just for today; they serve as a living legacy. You can use the trust to support your loved ones for years after your death, and you are in more control of your assets and how they are handled.

Another benefit to using a trust is that your estate is not a matter of public record. Instead, the assets and beneficiaries who receive the assets from the estate are kept private.

To explore your options for setting up a trust, meet with an estate planning attorney like the Law Office of Andrew M. Lamkin, P.C. Attorney Lamkin has helped countless families just like yours create trusts that provide for them while they are alive and long after they pass. He can help you not only create your trust, but also make sure you have a well-balanced estate plan where no asset is overlooked – to ensure your family doesn’t go to probate court for missed assets.

To get started, schedule a free case evaluation by calling 516-605-0625 or request more information online.

What Happens When an Estate Goes to Probate?

Probate is a legal process where a person’s estate is administered and officially closed out. All real property owned by the deceased is assessed by the court and then distributed to interested parties. While it sounds simple, probate is much more than reviewing a person’s assets and handing them over to beneficiaries. The process can take several months – and sometimes longer when complications arise.

When Is Probate Required for New York Estates?

Every state has rules in place for when and why an estate goes to probate. Estates without a will and those with only a Last Will and Testament typically go through probate. Probate court is necessary to pay all final debts, distribute assets to beneficiaries, and make sure a loved one’s wishes are carried out.

What Are the Steps of Probate and What Happens to the Assets?

Probate is complicated, and it involves multiple stages. Also, there are strict deadlines in the probate process, and missing just one can delay a case even further.

Authentication of the Last Will and Testament

If a will was created, then state law requires that the party in possession of that will submit it to the probate court as quickly as possible following the death. Typically, the will is submitted with an application to open the probate process, and a certified copy of the death certificate must be submitted with the documents, too.

The judge will review and decide if the will is valid, which requires a single court hearing. The notice of that hearing must be given to all named beneficiaries in the will and any heirs. The hearing also allows for family members to express concerns over the will’s validity and object to anything in the will. Also, it enables family members to look for more current versions of a will and ensure that the probate court is only using the most recently drafted version.

During this hearing, if the judge decides the will is valid, they will appoint an executor. The family members can object to the appointment at the hearing, but must provide valid reasoning for their objection.

If the will does not have any self-proving affidavits attached, then the judge may require witness testimony or a sworn statement from witnesses about the will’s validity, such as two adults who witnessed the deceased signed the will.

Appointing the Executor

The judge appoints the executor named in the will. If none are named or the one named is no longer available, then the court will pick a different administrator for the role. Usually, the court will appoint next of kin if no one is named or the previously named executor cannot fulfil their role. No one is obligated to serve. Therefore, if the court selects someone but they decline, the court must choose another suitable executor.

Once appointed, the executor receives their “letters of testamentary,” which give them permission to access assets and make transactions on behalf of the estate.

Locating Assets for the Estate

The executor must then find all assets and take them into possession to protect them during the process. Sometimes it takes time, especially if the deceased does not list all assets in their will correctly.

They must research assets, policies, tax returns, and other documentation to find all associated assets.

Then, the executor must make sure property taxes are paid, insurance policies kept current, and homes paid for until probate completes.

Determining Asset Values

Once all assets are accounted for, the executor then does a date of death value. This determines the value of the assets at the time of the death and is often done through appraisals or account statements. The executor then submits their written report with all assets and their value to the court.

Identifying and Informing Creditors of the Death

Next, the executor must locate and notify all creditors of the death, and they are also required to publish a death notification in the local newspaper. Creditors only have so long to make their claims against the estate before they are cut off.

Once creditors are found, the executor must then pay all debts using assets and funds from the estate – this includes homes, medical bills, and any outstanding payments owed.

Taxes

The executor will prepare and file the final tax return for the deceased’s estate and pay any taxes due at the time they file. Some assets might require liquidation to pay for these costs.

Distributing Assets to Beneficiaries

Once all creditors are paid, the executor then distributes the remaining assets to beneficiaries by the requests in the will. Usually, the executor must have the court’s approval before they start distribution.

While distributing assets, the executor must keep a running transaction log so that all beneficiaries can review it.

Would You Prefer to Avoid Probate?

As you can see, the process of probate requires numerous steps, and each of these takes time. On average, cases take six months to a year to finish probate – which means your loved ones may wait as long as 12 months to receive their inheritance.

Likewise, your estate’s information becomes public record.

If you prefer to keep your family’s inheritances private and expedite the process, you can avoid probate with a trust. A trust allows you to move all assets under the trust’s ownership, and upon your death, your trust’s assets are distributed based on guidelines you have provided in the trust documents. With a trust, your family does not endure the costs or hassles of probate court and you still control who receives what from your assets.

To explore whether a trust is the right option for you or to get assistance with probate, contact a local attorney with years of experience in estate planning like Andrew M. Lamkin. Schedule a free consultation today with the Law Office of Andrew M. Lamkin, P.C., at 516-605-0625 or request more information online.

How Do You Obtain a Letter of Testamentary?

Getting a letter of testamentary is what you need to proceed in probate court. You will need to file a death certificate and a will with the county, then your official form requesting your letter.

As the executor of an estate, you must take care of all financial tasks before you can officially close out an estate and fulfill your duties. Just some of the major tasks you must tackle include paying off all debts from the estate, gathering assets, distributing assets as the will outlines, and notifying beneficiaries.

Before you can do any of these tasks, you need a letter of testamentary, which is a document you get from the probate court. It provides you with the proof that you are the executor for the estate, and it provides you with the authority you need to do your tasks as the executor.

What Is a Letter of Administration – Do I Need That, Too?

Some probate courts will refer to these letters as the letter of administration. This is a letter that is issued by probate court when an official executor is not named in the will, or there is no will and the estate is intestacy. In this case, the court decides who is qualified to handle the executor duties and will issue a letter of administration to that party.

Both documents give the executor the power to handle all estate matters, but the administration letter only allows the executor to distribute assets that abide by the laws of intestacy, which are different in New York than in other states.

How Do You Get a Letter of Testamentary?

If you are named as the executor and there is a will, then you will obtain the testamentary version of the letter. To do so, you will go to the county probate court.

You need a copy of the will that names you as the executor, a copy of the death certificate, and the court required letters of testamentary forms along with your application for the letter. You may also need to bring along identifying information to prove you are, in fact, the person named in that will.

After you have completed the application, you will file it with the court and wait for your hearing date. The hearing is usually brief, and the probate court judge will review the documents, verify that you are the executor, and also make sure you can carry out your executor duties. Usually, you must be mentally competent, which is the only requirement.

The court then issues you the letter of testamentary, and you will want to obtain certified copies. Most financial institutions will require a certified copy of the letter to keep for their records. Therefore, get one for each financial institution where you will need to remove or access assets.

Letters of Testamentary: Can They Expire?

These letters give you the legal authority to manage a person’s financial assets. Therefore, the court will require that you do so promptly and in accordance with the will. You must administer all financial tasks promptly, but the letters themselves do not expire. However, if you purposely fail to perform your fiduciary duty or the courts feel that you are taking longer than necessary to handle the deceased’s estate, you may have your letter revoked.

Once You Have the Letter, What Should You Do Next?

Now that you have the letter, you must follow through with your duties. Just some of those include:

Locating All Assets

The estate plan should have a list of assets, but it is your job to go to each financial institution, using your letter of testamentary, so that you can access those assets. You may need to have assets valuated if it has been too long.

Finding All Debts Due

Before you can distribute assets, you will need to use any funds from bank accounts to pay any outstanding debts first. You may also have to sell any assets or sell stocks so that you can satisfy those debts as well.

File Taxes

You are required to file the final tax return for the estate as well. And if you are working with an estate attorney, they can help you with this task.

Distribute Assets

The will should discuss how the assets will be distributed and which beneficiaries will receive what physical assets or amount of funds. You are required to follow the will, but there may be instances where you have to use your own judgment if the will is not specific. Other times, someone may leave requests such as leaving 25% of their estate to one child. After you have satisfied debts, then you would determine what is 25% of that remaining estate value.

It Is Best to Hire an Attorney When Administering an Estate

Trying to work your way through the intricacies of probate court, let alone your duties administering an estate, can be daunting. If you are unsure of where to start, consider hiring an estate attorney to assist you.

An attorney can help you with your executor duties, including filing the correct forms, working on estate taxes, and ensuring all assets are distributed correctly.

If you are creating an estate plan, consider setting aside funds so that you can pay for an attorney to help assist with the administration portion of your estate. Having an attorney is incredibly valuable. They will help you with each step and ensure you are following all state laws regarding how you probate an estate.

To get started, speak with an estate planning attorney here in New York by contacting the Law Office of Andrew M. Lamkin, P.C. You can schedule a free, no obligation case evaluation now by calling the office. You can also request more information about assistance with your executor duties by completing an online contact form.

When Will My Case Finish Probate?

Probate’s length depends on the complexity of the case and whether you have anyone contesting. However, you can expect anywhere from six months to up to two years.

Likewise, you could have such a straightforward case that you are done, and the case is completed in two months – however, that is rare.

One of the first questions our clients ask us is how long they should expect probate to take. While you want it quick, and preferably painless, it is all based on the executor, size of the estate, creditors, and a few other factors.

Factors That Can Affect Your Probate Case Timeline

To help you better estimate and understand why some cases take longer than others, we need to discuss the three primary items: executor naming, settling, and closing.

First, the Executor Must Take over the Estate

The first step of probate is for an executor to take over and get started on their administrative duties. This takes anywhere from two to six months, although, we usually see this only last three months.

The letters of testamentary take time for an executor to receive, and then they must receive their court appointment. Time extends in this phase of probate when the information is not available, or court documents were not completed and submitted to the court on time for processing. Processing is a four to eight-week process alone. Therefore, when an executor is ill-prepared, it does take longer.

Once these letters are approved, then the executor is named official and can start taking over other tasks.

A few ways to speed this up would be to ensure all family members sign and have documents notarized quickly. Unfortunately, not all loved ones are inclined to help or even do so promptly. Therefore, most of the delays during this stage come from finding family members and getting them to sign necessary documents.

Likewise, court delays can happen – especially if the court is overrun with cases that month. The clerk may also go on vacation, or they have a docket too full to get to your paperwork right away. If your paperwork is not processed, you should follow up with it and see if you can expedite it or if there is a hold that you need to address.

Third Party Hearings

Some times, a third party hearing is required, such as a public administrator, to look over the estate. When a third party gets involved and the court appoints them, it can dramatically delay your probate case.

Second, the Estate Must Settle

Now, you are onto the second phase. This portion can take anywhere from seven months to as much as three years.

The settlement is by far the most complicated process of an estate. The executor is now administrating, and that means that they will collect all estate assets listed in the will, organize outstanding debts, pay any debts, file final tax returns, and possibly value any assets of the estate to ensure they are accurate.

Potential Hold-Ups at This Phase

You have a few reasons that this phase can take longer than you would expect, including:

  • Institutions being Slow to Respond: Financial institutions are not quick to respond to requests for estate documents, including banks, lenders, and insurance companies. Therefore, the paperwork and lead times do vary.
  • Asset Locations and Issues: Some assets are difficult to share or place a value on them, including shares for private companies or real estate that currently has a tenant refusing to move out so that you can sell the home for liquidation.
  • Taxes: Estate taxes are complicated, and when a return is required, the process takes longer for the executor to compile the information and work with an accountant and attorney to get it all done.

Closing the Estate – the Final Phase

Now you are ready to close out the estate. But this is multiple steps in a single phase, and not something that goes quickly. In fact, it can take just 30 days or 12 months.

More documents are required in the closing phase, including all court forms that are distributed to beneficiaries to ensure they are given all necessary information.

The heirs must review any financial reports, and then they have a chance to contest the information. If a contest occurs, this process will take longer because it will require a court hearing just to address anything the heir contested.

Also, if anyone contests the validity of the will itself, you will notice a considerable delay. Not only do these take time, but they also can quickly drain resources tied to the estate – which may affect what beneficiaries receive in the end.

Speed Up the Process or Skip It Entirely

If you are creating a will but you want to save your family the hassles of probate, then you may consider a trust instead. Trusts allow you and your loved ones to bypass the probate phase, and you can distribute assets through the trust without having to wait years to complete the process.

Likewise, if you want to ensure your loved ones have a smooth probate process (without using a trust), then work with a qualified estate attorney who knows the New York probate lead times, common issues, and can draft a will that reduces the likelihood of errors/contests and other hold-ups.

If you are an executor and you find yourself facing multiple contests, beneficiaries unwilling to provide the information you need, and other stalls, you may want an attorney to assist you.

Andrew M. Lamkin, P.C., has helped countless families create their estate plan, including setting up trusts, drafting wills that follow all laws and leave out any vague statements (a common cause for contests), and helping executors successfully close out an estate.

To explore your options, speak with him today for a free case evaluation or request more information online about his estate planning, wills, trusts, and probate services.

Can You Stop Probate Once It Starts?

The probate process typically starts after your loved one passes away.

The purpose is to administer the estate of that deceased person, and it gives an opportunity for heirs to challenge the will if they feel there was tampering. Most probates go through without issue.

However, there could come a time when legal heirs want to challenge a will or stop the process of probate entirely.

Stopping probate requires an attorney to file a probate caveat.

Caveats cannot be filed haphazardly. And once probate starts, there is no guarantee your case would qualify for caveats. Understanding how this legal process works, when it applies, and who can file it is your first step toward seeing if it is an option for you.

Naturally, you should consult with an estate attorney before assuming a caveat is viable.

The Basics of Caveat: When Can You Stop Probate in Plainview, NY?

Probate caveats are legal maneuvers that give notice to the probate court to suspend the process. Caveats must file before probate begins as a pre-probate legal action. Caveats prevent the estate’s executor from administering the estate or moving forward with the process.

Also, a caveat tells the court about discrepancies found in the estate plan and allows for any contests to move forward. Once the caveat files, the probate process is suspended until the reason for the caveat is resolved.

Who Can File a Caveat?

Anyone with interest in the estate, not just the executor, can file the notice. However, it is best to hire an attorney to file on your behalf.

Also, creditors may file caveats.

Anyone affected by probate can file a caveat to stop the process. The party that files a probate caveat is named the caveator. Caveats are used for specific situations, including:

  • The caveator suspects the will was forged and not approved or signed by the deceased.
  • The caveator suspects that the deceased made the will under duress.
  • The caveator alleges there was no will and wants to prevent the executor from administering the property of that will intestate.
  • The caveator suspects the deceased was mentally incapacitated; therefore, they could not legally sign their will.
  • The caveator is in the middle of a dispute about including an heir in the will or excluding an heir from the will.

To File the Caveat or Not: When Is a Caveat Necessary?

Caveats do not always work as an advantage to the party filing them. Therefore, you should only submit a caveat after consulting with an attorney and deciding it is the best solution for your situation.

The benefit of a caveat is that a temporary, neutral party is then named by the court to serve as an administrator during this challenge. This means, if you wanted the original executor removed, you do not have to worry about them continuing to manage the estate while the caveat finalizes.

The neutral party named prevents the current executor from accessing assets, but that neutral party comes at an expense to the estate. Therefore, the process of completing a caveat can be expensive.

Also, caveat results are appealable, which means that the result you get might go for further hearings and eventually cost your estate more.

How Can an Executor Fight a Caveat?

Sometimes, the executor must remove the caveat to execute the will effectively. If you are an administrator of a will and a caveat has been filed, you should consult with an attorney.

Caveats are the first step to a will contest, which means that a contest hearing is likely to come next. Furthermore, a caveat prevents you from doing what is necessary to complete the estate and fulfill your obligations as an executor.

Do You Need an Attorney for a Caveat?

Whether you are filing the caveat or you wish to remove a caveat, an estate attorney is almost always necessary. Rarely is an administrator or the party filing a caveat familiar with estate laws, including the grounds for a caveat and how to file the petition itself.

Not only do you need to review the will and object to the caveat, but you need to understand the law so that you can regain control of the estate and continue your obligations as the executor. An experienced attorney knows the caveat process and can stop unnecessary will contests from affecting the estate for months.

Will Contests Can Still Happen after Probate

Even if you successfully remove the caveat and complete probate, an heir can contest a will after probate. Note that there are time limits on how long one has to challenge after probate starts. And once the estate is administered, the chances of succeeding at a will contest are quite low.

Finding the Right Lawyer for the Job

If you are an administrator of an estate dealing with a caveat or you are an heir that wishes to stop probate, you must consult with an estate attorney.

You want an attorney that has experience in estate litigation and one that can quickly focus on the matter at hand to prevent any unnecessary delays. The Law Office of Andrew M. Lamkin, P.C., can help with your case. We look for the fastest, most cost-efficient way to resolve your estate issues – including caveats and contests.

To explore your options or to discuss your issues with a caveat, contact our law firm for a free, no-obligation case evaluation.

Call to schedule your consultation appointment now at 516-605-0625 or request more information online.

What Is Ancillary Probate?

If you are like most who are starting out with estate planning, you have heard of probate court – and you know that you want to do what you can to avoid it. What you might not have heard about is an ancillary probate. Ancillary probate is a secondary probate for your estate when you own property in another state.

Loved ones must endure the costs and hassles of a formal probate court. But adding on the hassles of ancillary probate can be even more taxing.

Two probates happen when you have out-of-state real estate because real estate is governed in the state where it is located – regardless of where you reside.

When Would a Plainview Resident Have Ancillary Probate?

Second probate court proceedings happen when you own real estate or tangible property outside of New York. For example, you have a New York primary residence but also a Florida condo you use in the winter.

Realize that ancillary probate is not just a vacation home or secondary residence. It can also involve tangible property. For example, you own a plot of land without any buildings on it in Montana. Another reason for ancillary will be if you own mineral rights out of state.

Your New York probate court would handle all property in New York, but any property outside of New York would require ancillary probate. When you own multiple properties or tangible properties out of state, each state would have probate proceedings for those pieces of real estate.

The Process for Ancillary Probate

First, the domiciliary probate process initiates. This occurs when the decedent’s state recognizes the will, and the executor starts the probate proceeding.

In some cases, the executor may also initiate the ancillary probate.

Any challenges to the estate plan are done in the domiciliary state’s probate court. Once the court admits the will, the ancillary states follow.

The process varies by state, but the process of ancillary probate is shorter than formal probate. Some states even offer streamlined ancillary probate processes, including allowances for foreign executors (an executor residing in another state). By doing so, the foreign executor can take control of the property and transfer, sell, or manage it by the instructions of the will.

The Negative Impact of Ancillary Probate

It is better to avoid ancillary probate because, like formal probate processes, there are consequences to going through the process.

One of the most significant consequences is the cost. It is costly enough to administer an estate in one state, but two states with two probates is expensive. Beneficiaries will not only endure the time of both courts, but also endure multiple court fees, attorney’s fees, and accounting costs.

If the deceased passes intestate (meaning they have no valid will), the intestacy laws of that state determine how the property will be handled. Every state is different with how they handle property if there is no will. Rightful heirs of the intestate estate may find that the property is dealt with differently in the other state – and not always favorable to them.

How to Avoid Ancillary Probate Entirely

Probate is not necessary for real estate in your domicile state let alone property out of state. With a trust, you can avoid probate entirely. With a living trust, your property is passed directly to your beneficiaries.

To do this, you would put the title of your out-of-state property and any in-state property into the trust. By doing so, the trust now owns the property (not you). Upon your death, the trustee would then distribute assets from the trust by the trust rules.

Using a living trust is the most common method for avoiding probate in both states. If you don’t want to use a living trust, you may also be able to:

  • Own the property with another person: Owning the property with another person opens the door to joint tenancy, which means the property would pass to the other owner upon death.
  • Transfer-on-Death deed: A transfer on death deed (TOD) transfers real estate upon death. You must record it and file it with the local records office for it to be valid. Note that not all states allow a TOD. New York, for example, does not allow TODs. Therefore, if your ancillary property is in New York, you would not be able to use this method for avoiding ancillary probate.

All of these options might work for your estate, but it is best that you consult with an attorney. Depending on your estate’s size, assets, and beneficiaries, some options for avoiding ancillary probate may not work for you.

Consult with an Attorney Regarding Your Ancillary Property and Possible Probate

If you have an out-of-state property you use as a vacation home, rental property, or you own mineral rights in another state, protect these assets by meeting with an attorney and drafting an estate plan that addresses the unique issues these properties create.

You can still protect your loved ones and avoid ancillary probate. To explore your options, speak with an attorney by calling the Law Offices of Andrew M. Lamkin, P.C.

During your free consultation, we can go over each option, discuss the pros and cons of your estate going through ancillary probate, and draft an estate plan that protects your long-term care needs and provides for your loved ones when the time comes.

Schedule your meeting today by calling 516-605-0625 or request more information online.

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

An executor has a duty to the estate to complete the probate as quickly as possible. While sometimes it takes a few months, estates can take up to three years to complete.

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?

Probate 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?

After 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 a beneficiary, the funds will be sent through probate so that 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 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

When 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.