Protecting What
Matters Most
Matters Most
New York Probate Lawyers
The probate process ensures that a deceased person’s debts are settled and their assets are distributed according to their will or state laws. At The Chamberlain Law Firm, our New York probate lawyers are dedicated to guiding you through this process. Sometimes it is procedurally complex and other times it is relatively straightforward. Although, in New York, it always requires a lot of paperwork and is expensive compared to some other jurisdictions, including New Jersey.
Probate With a Will
When starting the probate process, you need to first determine whether the deceased person had a valid will. A valid will in New York is created by someone 18 years or older of sound mind and memory, written, and signed by that person (“testator”) in the presence of two disinterested witnesses. (Like anything in the law, there are several caveats and exemptions to this, but these are the basics.) While wills in New York do not need to be notarized to be valid. They can be made self-proving with an affidavit if notarized, which is highly recommended and can make the probate process significantly easier after the testator’s death.
When you have a valid will, it must still be approved by the county surrogate’s court. This is generally referred to as the “probate process.” Once approved, the surrogate’s court issues “letters testamentary,” enabling an appointed executor to manage the estate. The executor is responsible for paying the estate’s remaining debts and taxes, and distributing the remaining assets according to the will. It’s always wise to keep thorough records during this process. And, at the end, it’s smart to have beneficiaries sign waivers, confirming their satisfaction with the distribution, that they will not sue the estate/executor, and they will contribute to pay any valid claims in the future against the estate.
Serving as an executor can be a complex and time-consuming task or it can be fairly straightforward. It all depends on the specific circumstances of the estate. Generally, executors’ work will require tasks such as reviewing and filing tax returns, accessing bank accounts, selling assets, making distributions, and keeping records. It is essential to appoint a trustworthy and capable executor to ensure the estate is managed well. And, hiring a good law firm is always helpful, which is why our New York probate attorneys provide guidance and support throughout the process.
Probate Without a Will
If a person dies without a will, that is called “intestate.” The process of handling their estate is called an “administration proceeding.” There are three main parts of an administration: (1) appointing a person in charge; (2) gathering assets and paying debts; and (3) making distributions to the beneficiaries according to New York intestate succession laws.
In New York, according to SPCA 1001, the order of priority for appointing an administrator to handle an intestate estate is as follows: surviving spouse, children, grandchildren. father/mother, brothers/sisters, and other beneficiaries of the estate. When choosing an administrator for the estate, the court gives preference to the person who will receive the largest share of the estate. However, if all eligible distributees are equally entitled to administer the estate, the court may appoint more than one person.
The priority of distribution of decedent’s assets is based on their marital status, whether they had children or not, and other surviving family members. Where there is a spouse and no children, the entire estate goes to the spouse. If the deceased is survived by a spouse and children, the spouse receives the first fifty thousand dollars along with one-half of the balance of the estate. The other half goes to the children. While unlikely, if there are no living relatives at all, the assets will go to the State. There are many different scenarios that could play out here, which we will cover in detail through our Insights Articles. But, if you need assistance with understanding the complexities of New York intestate succession laws, please do not hesitate to reach out to our New York probate lawyers.
With all of this said, the probate process without a will increases the likelihood of disagreement among potential candidates to handle the estate. It can also lead to unintended outcomes if you do not agree with how the law decides who will inherit your hard earned life savings. Also, there is a good chance the executor will have to post an expensive bond, which acts similar to insurance to help ensure the beneficiaries receive their inheritances. These are just a couple reasons why it is a very good idea to have a last will and testament that provides a clear road map for your loved ones to follow after you pass away.
Death Taxes in New York
As of 2024, if you leave behind more than $6.94 million, your estate may be subject to a New York death tax. While this affects only a small percentage of New Yorkers, it is essential for high-net-worth individuals to be aware of this tax to prepare accordingly.
The “death tax” is a colloquial term that encompasses estate, inheritance, and gift taxes levied by the federal and state governments. In New York, the state levied death tax is called an estate tax. Paying estate taxes at the time of death involves filing the appropriate tax forms, calculating the tax based on the estate’s value, and adhering to specific deadlines for payment. It is important to note that lifetime gifts made within three years before the person dies are counted toward establishing the estate’s total, which sets the estate tax number.
If you are dealing with death taxes now or potentially in the future, our attorneys can help you navigate their complexities.
Estate Administration, Representing Beneficiaries, & Trust Administration
In addition to probate matters, our law firm can assist with other estate administration issues. We provide guidance and support to executors, helping them understand their duties and responsibilities. We also assist with trust administration, ensuring that trustees adhere to the high fiduciary standard required when administering a trust. If beneficiaries are unhappy with the trust and estate administrations, we can guide them through the process and explain their options.
Probate Litigation
Although most probate proceedings proceed without issue, disputes can emerge. These disputes may involve challenges to a will, alleging that the deceased lacked the mental capacity to sign it, or that there was duress or coercion involved in its preparation or signing. Our skilled attorneys are seasoned litigators, committed to guiding clients through these intricate cases. We provide clear explanations of the law and its relevance to each individual circumstance, empowering our clients to make well-informed decisions throughout the litigation process.
When someone passes away, there can be a wide range of matters to attend to, from simple to complex. The New York probate attorneys at The Chamberlain Law Firm are here to help. Please call us at (201) 273-9763 or contact us here to discuss your probate matter.
