August 17, 2019










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.

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.