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Will and Trust Attorney
Last Will and Testament Attorney Serving
A last will & testament is a legal document that provides instructions for the distribution of your assets after your death. A will can also name a guardian if you have minor children, and can include, what are called “ethical will” provisions related to values, and deeply felt wishes to pass on to future generations.
The individual writing the will is known as the testator. When that person dies, they are referred to as the decedent.
What is a Probate Court?
A probate court is a special court in the judicial system that is tasked with handling issues concerning wills, trusts, estates, conservatorships, and guardianships.
If someone disputes or contests a will—perhaps because they’ve been excluded or they feel the decedent was under duress or didn’t have the capacity to sign the will—the probate court will hear the claim and rule on the issue.
In New York, it is the Surrogate’s Court that’s responsible for all probate and estate proceedings. Wills must be probated in the Surrogate’s Court, as well as the estates of people who die without a will.
What is Probate and When is it Required?
Probate is the court-supervised process of authenticating a last will and testament when the deceased has executed a will. The probate process also includes locating and determining the value of the person’s assets, paying their all of their debts, filing taxes, and then disbursing the rest of the estate to the heirs designated by the decedent in his or her will.
If a person dies without a will (intestate), the probate process entails distributing the decedent’s assets according to New York intestacy law (statute).
In addition, the probate judge will appoint an executor when there is a Will, or an administrator when there isn’t a Will, to oversee the estate of the deceased. This person will address all legal claims against the estate and pay off any liabilities of the estate. The court will approve the will and the settling of the estate, and finally order the estate closed after everything has been completed.
What Are Some Simple Ways to Avoid Probate? How to Avoid Probate in NY
Here are some common ways that are used to avoid the time-consuming, and often costly, probate process:
A Revocable Living Trust. The primary benefit of holding property in trust is that after your death, the trust property is not subject to the probate process, though it is included in your estate for tax purposes. After your death, the trustee can immediately give the asset to the intended recipient without going through the probate process.
Payable-on-Death Accounts. Your bank accounts and retirement accounts can be made to be payable-on-death accounts by filling out the appropriate form provided by the financial institution where your account is held. On this beneficiary designation form, you designate your beneficiary for the account, and when you die, the money goes directly to your beneficiary without going through probate.
Titling Property in Joint Ownership. There are a number of types of joint ownership of property that allow for its disposition when the first owner dies without the hassle, delay, and cost associated with the probate process. When one of the owners dies, the property goes to the other joint-owner, by operation of law, again with no probate. Here are the most common forms:
- Joint Tenancy with the Right of Survivorship (JTWROS). Property owned in joint tenancy automatically passes to the surviving owner when one owner dies. Under this type of joint ownership, the assets don’t need to pass through probate because the surviving spouse automatically receives the deceased’s property rights.
- Tenancy by the Entirety. In New York, married couples will frequently take title in tenancy by the entirety. Similar to joint tenancy, this form of joint ownership can be used only by married couples. But it avoids probate the same way. Unless the deed to the real estate specifies another alternative, homes are automatically held in tenancy by the entirety in New York. Each spouse owns a 100% share of the home, and the property can’t be sold or transferred without the other spouse’s approval.
- Tenancy in Common. Under this form of joint ownership, creditors can place liens on the property that can impact the share of other joint owners. Plus, one individual can hold a greater share of the asset than the other (in contrast to joint tenancy in which each person owns an equal share). Also, when one joint owner dies, his or her rights pass to the individual’s heirs rather than to the other joint owner(s).
Making Gifts. You can also give away property while you’re alive—inter vivos gifting (latin for “between the living”) — to help avoid probate. Because you no longer own the asset, when you die, it won’t go through probate. Plus, there are annual exclusion limits that allow you to give as a gift up to $15,000 each to as many individuals as you like annually (in 2021), without having to report it on an IRS Form 709 gift tax return. There are also lifetime credits that allow you to gift sums in life up to a total of $11,700,000 (2021) without being subject to the federal gift tax.
An inter vivos gift is a transfer or gift to someone while both the giver and the receiver are alive. In contrast, a testamentary transfer is a gift given after death, as provided for in a Will.
What If I Have Very Few Assets?
New York has a procedure for small estates. It’s known as a voluntary administration. If an individual died with less than $50,000 worth of personal property (e.g., a bank account), a small estate administration can be filed. The filing fee is only a dollar and it’s a much simpler and less expensive way of disbursing the decedent’s estate. The small estate process in New York is available even if the decedent did not have a will.
However, the courts in New York say that if the decedent owned real property, such as a house in their name alone, it no longer qualifies as a small estate. A full-blown probate process would then be required. If, however, the decedent owned real property jointly with another person and had less than $50,000 of personal property, his estate is eligible for a small estate administration.
In a New York small estate proceeding, the Surrogate’s Court will appoint a voluntary administrator. If the decedent had a will, the executor of the will is appointed the voluntary administrator. But if the decedent didn’t have a will, then the closest heir is named the voluntary administrator.
The Surrogate’s Court issues a certificate for each asset listed in the documents that the voluntary administrator collects. The assets are then distributed pursuant to New York probate law.
What Are The Legal Requirements in New York?
A will must be witnessed to be legally executed in New York. Pursuant to New York Estates, Powers, and Trusts Law § 3-2.1, a will is required to be witnessed by at least two witnesses. However, the witnesses aren’t required to witness the will together at exactly the same time.
A will in New York doesn’t have to be notarized.
What If I Die Without a Will?
Again, a person who dies without a legal will is said to have died intestate. If you die intestate, the probate laws of the State of New York will dictate how your assets are distributed. New York Estates, Powers, and Trusts Law § 4-1.1 says that distribution is determined based on the category or class of family relations that you leave behind.
If you leave behind:
- Only a spouse (no children), the spouse inherits everything.
- Only children (no spouse), the children inherit everything.
- Both a spouse and children, the spouse inherits the first $50,000 plus half of the rest of the estate. And, the children inherit everything else.
- Only parents (no spouse or children), the parents inherit everything.
- Only siblings (brothers or sisters… no spouse, children, or parents), the siblings inherit everything.
What if the Decedent’s Child Dies Before He or She Does?
Note that if a child dies before the decedent and had children of their own, they are the decedent’s grandchildren, and those grandchildren would inherit in place of the child.
For example, a father has three sons, and has bequeathed to, or given each of them a third of his estate in his Will. The eldest son dies before his father. In that case, the eldest son’s children would receive a third share of his father’s estate, effectively inheriting in their father’s stead or place.
What’s the Definition of “Child” to Qualify to Inherit from a Parent?
In order for a child to inherit from their parents, New York State says that there must be a legal parent-child relationship. Some of the rules on point include the following:
- An adopted child inherits in the same manner as a biological child;
- Foster children and stepchildren will not inherit unless they were legally adopted;
- A child of the decedent who is born after the decedent dies will inherit in the same manner as the decedent’s children born before he died;
- Any children born outside of marriage (sometimes called a “non-marital child”) will inherit from the decedent, without limitation. Biological children of the decedent have full rights of inheritance to the decedent’s estate. If it is at issue, the decedent’s paternity may need to be scientifically ascertained.
- Grandchildren will inherit only if their parent (the decedent’s child) predeceases the decedent.
- All this is subject to the testator’s wishes. If the testator decides to disinherit anyone, he can do so, with the exception of a spouse who may be entitled to spousal right of elective share in the decedent’s estate—i.e., the greater of $50,000 or one third of the decedent’s estate).
What If The Decedent Has No Family?
If the decedent who lived in New York has no family whatsoever, the property goes to the State of New York.
Who Can File An Estate Proceeding?
If the decedent has a will, the executor named in the will is tasked with initiating the probate process by filing for probate or a small estate administration in the Surrogate’s Court in the county where the decedent had their primary residence.
The executor will file the original will and a certified copy of the death certificate with the probate petition and other supporting documents in the Surrogate’s Court. Some courts allow the executor to file these papers over the internet using the New York State Courts’ Electronic Filing system.
If the decedent didn’t have a will, then there’s a rule as to who is eligible to file for the estate administration. Typically, it’s the closest natural distribute, or closest relative. Usually, this will be the decedent’s spouse who will have priority – a prior right over the decedent’s children – to file. However, if the decedent didn’t have a surviving spouse, then each of the decedent’s children has an equal right to file for the estate administration.
Also, if the relative with the prior right doesn’t want to administer the estate, that person can sign a renunciation and waiver. But, this doesn’t mean that the person is forfeiting their share of the decedent’s estate – it is just that they waive their interest in being involved in the estate’s administration.
Can I Write My Will Without a Lawyer?
Yes, you can, and there are plenty of programs online. But, note that your Will must meet all of the New York statutory requirements. For a simple estate, it may be a straightforward process for you; however, if you’ve been divorced, have a blended family, or an estate of any size, you should consult with an attorney. Don’t be penny wise and pound foolish.
Having an experienced lawyer assist you in preparing a Will can help ensure that your estate administration runs as smoothly as possible for your family’s peace of mind, without any hitches, and it can bring to your loved ones substantial cost and tax efficiencies and savings.
There are several other reasons to hire an experienced estate planning attorney to help you with your Will:
- A will is only a part of a comprehensive estate plan;
- You want to exclude a relative from receiving any of your assets;
- You own property in another state (like a summer home in Connecticut);
- You have a dependent with special needs;
- You think someone may contest the will;
- You have minor children who will need care;
- You have an adult child with an addiction; and/or
- You have an adult child who is not financially responsible.
These are just some of the unique situations and circumstances that should persuade you to hire an experienced estate planning attorney to help you with your Will, and comprehensive estate plan.
A knowledgeable estate planning attorney can apprise you of tax consequences and guide you to making the best decisions for your family after you’re gone. If you go the do-it-yourself route If you go it alone, draft a do-it-yourself Will or estate plan, and make a mistake, you may leave to those you hold most dear headaches, and hassles, inordinate delays, exorbitant legal bills, and untoward tax consequences.
It is wise to choose to retain an experienced attorney who practices in the field of estate planning & administration to help you through this process. You can take comfort knowing that your will and estate plan have been drafted and executed correctly and legally, and that your every interest, and your family’s, will have been taken into account on terms most favorable to you and your loved ones. It is also a most unselfish thing to do to ensure that you not leave for those you love the most a mess to have to deal with on their own.
How is a Will Different From a Trust?
As mentioned earlier, a will is a written legal document that states the decedent’s wishes. A will can name minor children and bequeath personal items and money to family, friends, or charitable organizations. Note that a will becomes effective only after the decedent has died. On the other hand, a trust is effective immediately when it’s created.
A trust is a legal document that memorializes a fiduciary relationship in which a trustor (or “grantor” or “settlor”) gives a trustee the right to hold title to property or assets for a beneficiary. A trust can provide more control and management of assets. Also, with a trust, the trustee may distribute assets before the decedent’s death, unlike a will. The trust document spells out specific instructions on how the assets are to be distributed, such as when the beneficiary reaches a certain age, or that the assets be used only for college or a first home.