The death of a spouse or loved one is one of the most stressful situations in life. The strain and feelings of grief and sadness can turn our world upside down. There are, however, many tasks to take care of when a person passes away. One critically important task is to help facilitate an orderly and efficient administration of your loved ones’ financial affairs.
When someone dies, he or she leaves behind their “worldly goods,” which is called their “estate.”
The deceased leaves a Will that often times designates a family member, friend, or advisor as the executor of their estate. The executor is tasked with administering the deceased’s estate. In addition to distributing assets in accordance with the terms of the Will, the executor must work through the probate process in Court, and pay any creditors.
Estate administration may involve a process known as “probating the will.” Of course, this process is much more simple when the deceased has a valid will with clearly stipulated terms and provisions. When an individual passes away without leaving a will, he or she is deemed to have died “intestate.” In that case, in the state of New York, the person’s property is distributed according to the New York laws of Estates, Powers & Trusts (EPTL). In the case of intestacy, the distribution of the estate is based on whether the deceased has living relatives and their relationships to the decedent.
If the deceased had a will, the executor (who is named in the Will) will, as a function of the estimated size of the estate, either file for probate, or a small estate administration, in the Surrogate’s Court in the New York county where the deceased had their primary place of residence.
There are several steps in the probate process that must be undertaken by the executor in estate administration:
Filing the probate petition. The executor first must file the will in the original, a certified copy of the death certificate, and a probate petition, and other required documentation, in the Surrogate’s Court of the county where the deceased person lived. The Court filing fee is based on the size of the estate. There are also publication and notice requirements to alert beneficiaries, natural heirs, and parties in interest as to the estate administration or probate. The executor will then be issued the Letters Testamentary or Letters of Administration by the Court.
Conducting a property inventory. The executor must collect the decedent’s belongings and property. Property, such as artwork, antiques, or valuable collections, may require an appraisal. This also entails collecting information about the deceased’s assets and debts. The executor may need to publish a Notice to Debtors and Creditors or notify any known creditors directly. He or she must also collect any amounts owed to the deceased. The executor has to pay the debts owed by the deceased, which can include things like mortgage payments, home equity loans, credit cards, income taxes, and property taxes. If the estate doesn’t have sufficient funds to repay the obligations, some or all of the estate assets may need to be sold.
Distributing the assets. After the creditors have been paid, the remaining property can be distributed according to the directions in the deceased’s will (or pursuant to New York state intestacy law, if there is no will).
The “distributees” or heirs to the estate are listed in the initial probate petition and are given a notice, known as a “citation,” that requires them to submit to the jurisdiction of the Surrogate’s Court to receive their portion of the estate.
Filing tax returns. Finally, the executor will file the New York state and federal income tax returns for the estate, as well as any gift tax returns which may be needed to report gifts made before death by the decedent and any required state or federal estate tax returns.
At that point, the executor will petition the court to close the estate, which ends the probate process.
Litigation. In instances where a conflict arises among beneficiaries, or between beneficiaries, the executor(s), and other parties in interest, where there are discrepancies between the Will filed with the Surrogate, and earlier iterations of the Will, or where issues emerge as to whether the deceased, when he or she executed the Will, was mentally competent to do, or may have been under undue influence at the time, an estate administration can rip a family apart.
We are experienced mediators, trained in the latest mediation techniques and strategies at Harvard Law School. We try to reconcile differences, minimize rifts within the family that may otherwise obtain. Our goal, whenever possible, is to minimize the need for litigation, which is a costly process, both emotionally and financially.
However, in some cases, where the issues are intractable and the stakes are large, litigation in an estate matter is unavoidable. In that event, we are prepared to summon our extensive experience and success in representing estates as well as beneficiaries before the Court.
As you can see, there is a lot to do. This job may be overwhelming for a family member who has been named the executor of the estate and is grieving and perhaps coming into town for only a few days to troubleshoot matters from out-of-state.
The oldest child is frequently named the executor, but he or she may never have handled an estate before. That individual is saddled with perhaps complex and foreign concepts and procedures. If the executor doesn’t have any training in estate administration, it can add a whole new layer of stress to an already painful and heart-wrenching experience. This can create more issues and even strain family relationships. The pressure to do things right and do things as quickly as possible can be enormous.
That’s why many people who are put in this position as executors turn to an experienced attorney for assistance. He or she can guide the executor through the process, and help make navigating unfamiliar tasks a much smoother and less stressful experience.
Our law firm provides estate administration, planning, tax, and litigation services to executors and families who may need assistance with both small and large or complex estates, with interests and assets in the US and abroad.
Our firm, at Ely J. Rosenzveig and Associates, P.C., in Elmsford, NY (formerly, White Plains), have the skill and experience to make an important, positive difference in your lives, and provide you with invaluable assistance in dealing with the most challenging estate matters.
Contact the law firm of Ely J. Rosenzveig and Associates, P.C. Email us at [email protected] or call (914) 816-2900 to discuss how we can help you create or update your comprehensive estate plan, or help you with your estate administration, tax, and litigation needs.