When a person dies there is always an estate left behind. Regardless of the size of the estate it must be settled in court. If the deceased person created a trust during his/her lifetime (inter vivo trust) and transferred all or most of the estate assets into such a trust – administration of such an estate may be simpler and may not require any or little court involvement. If the Estate is less than $30,000 and does not include any real estate – such an estate will go through a Voluntary Administration Proceeding, regardless of the Will being present. Voluntary Administration Proceeding is the process where the Court appoints the nearest relative of the decedent as an estate administrator who will be authorized to settle the estate.
What is Probate?
Probate is the court-supervised process of providing a Surrogate’s court with evidence to uphold the validity of the deceased person’s will. The court oversees the process in which the deceased person’s property gets distributed. In the State of New York, probate typically takes around fifteen months depending on the legal circumstances.
The Probate Process
The Surrogate’s court will go through the deceased person’s will. Based on the will, the court will identify any property owned as well as its estimated value. The beneficiaries stated in the will are notified of the court hearing. Their attendance is highly encouraged. Any outstanding debts or taxes held by the deceased person must be paid off to the proper recipient. These debts may include student loans, deductible, non-deductibles, interest rate debt, legal fees, accounting fees, insurance premiums, utilities, mortgage payments, and others. After all debts are paid, any remaining property is distributed to all designated heirs. Before the property can be distributed, however, there are a few steps the principal must take to ensure that all assets are transferred free from any legal obstacles: 1) The executor must mail a notice to all beneficiaries that the final hearing is coming up as well as file proof of notice, and 2) They must get the courts permission to distribute the property. Additionally, once all assets have been properly distributed along with the necessary paperwork, the executor must file all receipts and request to be released from his duties by the court.
What is an Administration Proceeding?
If a person dies without a Will – the Administration proceeding must be commenced. Administration proceeding is the process where the Surrogate’s Court appoints one of the estate distributes who is qualified to perform administrator’s duties. Letters of Administration will be issued by the Surrogate’s Court to such person giving them the authority to collect and distribute the Decedent’s property according to the law.
Duties of an Estate Administrator
Once a person is authorized by the court to perform an administrator’s duties, he or she will basically assume the role of the decedent and will take over the maintenance of the estate. Eventually, the administrator will have to distribute the estate in accordance with the Will (if there was one), or in accordance with the intestate law of the state where the estate was processed. Also, the administrator’s duties include filing and paying federal and state income tax returns for the decedent and for the estate (whichever is applicable) and any other debts of the decedent, liquidating the estate and distributing proceeds to the appropriate people and other things. Non-compliance with estate administrator obligations may result in revocation of your appointment as administrator and other penalties.
If probate is necessary, then you may come across issues such as a will being contested. A will contest is a formal objection raised against the validity of a will. A person making a will must be competent to do so (not under any influences or fraud) and must be doing so of his or her own free will. In most cases, will contests are usually focused on the assertion that the will does not reflect the actual intent of the testator. The contestant may make the argument that the testator was not healthy or in their best mental state at that time. If a will is being contested, the services of a probate attorney will likely be needed.
For more information, please contact estate planning and NYC elder law attorney Inna Fershteyn:
Phone: (718) 333-2395
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