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wills-probate

Wills & Probate Lawyers White Plains, NY

The New York Probate and Estate Administration lawyers at Gianasca & Shook can help your family through the probate and estate administration process of the New York Surrogate Courts.

The loss of a loved one is always a difficult and emotional time.  Often intertwined with mourning the loss of your loved one comes the necessity of settling their financial affairs, which can be quite overwhelming without proper guidance from an attorney.  In new York the process for settling the estate of a decedent is governed by the New York Surrogate Court Procedure, the New York  Estate, Powers and Trusts Law and various other rules applicable to the probate of wills and the administration of estates.  It is also important to understand the State and Federal tax laws that are applicable to the estate and the distribution of assets to heirs and beneficiaries.

If an individual dies with a will, the process of having the will admitted in Court and carrying out the terms of the will is called the “probate process”.  The person in charge of carrying out the terms of the will is usually set forth in the will itself and is referred to as the “executor” or “executrix”.  If an individual dies without a will, they are said to have died “intestate” and their assets will be distributed to their surviving heirs pursuant to the laws of “intestacy”.   In such a case the person designated by the Court to settle the estate of the decedent is referred to as the “administrator” or “administratrix”.   In either event the person charged with settling the estate is deemed a fiduciary and has various obligations to the Court, taxing authorities, the estate and the heirs or beneficiaries of the estate.

The fiduciary must obtain authority from the Surrogate Court to act on behalf of the estate which is referred to as obtaining  “Letters Testamentary” or “Letters of Administration”.   This can only be done after providing all interested parties with notice of the estate proceeding by service of “citation” or obtaining a “waive of citation”.   In the case of a will, interested parties include all of those named in the will and those who would take by intestacy if a will did not exist.  The assets of the estate must be harnessed and inventoried and kept in a separate account established for the estate.  There may objections to the person seeking to act as a fiduciary or in the case of a will, there may be objections to admitting the will to probate.  In certain instances the spouse of the decedent may wish to assert their right to “Spousal Elective Share” authorized under New York law.

The procedural and substantive law of Probate and Estate Administration are complex and a New York Elder Law and Estate Administration attorney should be consulted upon the passing of a loved one.  We provide a full range of services related to estate administration including shepherding a will through the probate process,  ensuring the heirs to a will receive what they are entitled to, providing representation to heirs and fiduciaries when a will does not exist, and advising on required Surrogate Court accountings and relevant tax filings.

Reliable guidance when making your will in White Plains

For a will to be valid, it must observe certain formalities of execution and express the testator’s wishes in clear terms. In general terms, this means the will must be written and signed by the testator and witnessed by two disinterested parties who also sign it. The law allows testators to place certain conditions on bequests, but the probate court will not approve a condition that violates the law or public policy. We guide our clients through the entire will formation process and take care to ensure the validity of the will. As elder law attorneys, we scrupulously avoid any practice that might suggest undue influence or manipulation of a testator.

It is worth noting that a will is not always the best way to pass wealth to an heir. Our trusts and estates lawyers explain other strategies that protect your gifts from losses due to taxation or liability.

Probating a will in New York

The term “probating a will” refers to the process of getting the Surrogate Court’s approval to dispense a decedent’s estate according to the terms of a will. In New York, wills that transfer assets of $30,000 or more must go through the probate process. Fees for the Surrogate Court are based on the size of the estate. The person in possession of the will alerts the executor, the person named in the will to settle the estate. The executor then presents the will to the probate court and pays the filing fee. If the will is valid and the estate is small, the whole probate process may only take a few weeks. But if someone challenges the will or if the decedent had complex assets, the process will be longer.

The executor’s duties and powers

The Surrogate Court must approve the executor before that person has any authority to act. Once formally appointed, the executor has the authority to take control of the decedent’s assets for the purpose of executing the terms of the will. This is a position of great trust and responsibility; an executor can be held personally liable for mistakes or mismanagement of assets that diminish the value of the estate. The executor must pay outstanding bills, including taxes, and collect debts owed the estate. Once those matters are concluded, the executor can distribute assets to heirs. An executor is entitled to be paid reasonable fees for services. If you’ve been named an executor and fear the job may be too big for you, our probate attorneys are happy to help.

Understanding a spouse’s right of election

New York law contains a special protection from disinheritance for a spouse of the deceased. If the will does not pass sufficient assets to a surviving spouse, the spouse may elect to receive assets from various categories, such as cash, cars and clothing, in amounts ranging from $2,500 to $25,000.

Contact our elder law attorneys for strong representation in White Plains, NY

Giannasca & Shook, PLLC helps testators record their will and executors navigate the Surrogate Court’s probate process. We also act as executors for complex estates.  To schedule a free consultation, call 914-872-6000 or contact our office online.