Trusts & Estate Planning in Queens, NYC

Probate

The Probate Process

When an individual passes away leaving a will, there is a court-supervised process of ensuring the validity of the will. This process is called probate and includes:

• Filing the original will and probate petition with the court
• Appointing an executor
• Estate asset appraisal
• The collection of estate debts
• Paying of creditors
• Distribution of wealth and assets to appropriate beneficiaries and/or legatees

The probate process can be difficult to understand for executors, heirs, beneficiaries and others. This is particularly true if the deceased has a significant amount of assets, overseas assets, or if there is an active dispute over the will’s validity.

Estate Administration

What Happens If Someone Dies With No Will?

Administration refers to the legal process by which the assets of an individual who passes away without a valid will are collected and distributed. Without a will setting forth the decedent’s ultimate wishes, New York intestacy laws determine the distribution of the estate assets. New York law also dictates who has the right to be appointed as administrator of the estate.

The administrator could be a surviving spouse, child, parent, or sibling depending on what family is left behind at the decedent’s death. Some of the administrator’s duties include the following:

1. The administrator must take control over the decedent’s assets.
2. The administrator must keep accurate records that show all money and assets that are collected and disbursed from the estate.
3. The administrator must file tax returns for the estate and the decedent, and pay all taxes and debts.
4. The administrator must pay all estate debts.
5. The administrator must distribute the estate’s remaining assets to the heirs as determined under New York intestacy laws.
6. The administrator must file a final accounting with the Surrogate’s Court. The accounting shows the total value of the assets of the estate, and payments made for debts, taxes, and expenses related to the administration of the estate.

Although the duties of the administrator can be extensive, an experienced attorney may be hired to help in the administration of the estate. An experienced attorney can help clarify and stream-line the administration process and reduce the stress on the administrator and heirs.

Contested Wills – Estate Litigation

Past experience tell us that the best way to litigate an estate is to, in fact, avoid it altogether. Avoiding the potential loss of hard-earned estate assets in litigation costs is of the upmost importance. This starts with appointing a trusted executor who cares for the interests of all parties involved.

A will contest is a formal challenge raised against the validity of a will that has been filed for probate. A beneficiary or heir may object to a will for a variety of reasons, including:

• Lack of mental capacity: the testator (person who made the will) lacked capacity when the will was signed
• Undue influence: someone influenced the testator to draft a will which reflects the wishes of the person exercising the undue influence and not those of the testator
• Forgery: the will was not signed by the testator
• Improper execution: the testator did not follow the proper steps for signing the will
• Duress: the testator was forced to sign the will under threat of harm
• Fraud: the testator only made the will because of a lie by a third party

If a will contest is successful, the decedent’s assets will be distributed to his or her heirs as if there was no will at all.

Remove an Executor or Administrator

The Tough Job Of An Executor

Many vital fiduciary duties accompany the role of estate executor, owing an important responsibility to the estate itself and its beneficiaries. Oftentimes, disputes arise between an executor and beneficiaries leading to the removal of an executor. Whether you are an executor or beneficiary involved in a conflict regarding the distribution of assets, the law offices of Zelenitz, Shapiro & D’Agostino, P.C., has the experience and knowledge to help you understand your rights. As probate law and estate litigation attorneys, we will walk you through the process from start to finish, ensuring your interests are protected.

Why Remove An Executor or Administrator?

A beneficiary or heir may petition for the removal of an executor or administrator if they are suspected of:

• Underselling estate assets – for example, selling a home for less than market value
• Wasting assets
• Embezzling assets
• Commingling estate assets with personal assets
• Favoring certain beneficiaries or heirs to the detriment of others
• Disposing of assets without earning fair market value
• Unreasonably delaying distribution of assets, such as an inheritance

Disagreements between executors and beneficiaries can drain a family of much needed resources, time, and energy. Our probate litigation and negotiation services can potentially help spare your family from a lengthy and exhausting legal battle, seeking resolution in the most cost-effective and harmonious way possible.

Estate Planning

The best way to avoid litigation is to ensure that your wishes for how your assets are to be distributed upon your death are set forth in a clear and unambiguous manner. This starts with establishing what is called an estate plan.

An estate plan includes documents such as a last will and testament, power of attorney, health care proxy, living will, and revocable and irrevocable trusts. Together, these documents will allow you to guarantee that your assets will pass to the people you want them to pass to during your life and after you pass.

The most important estate planning document is your last will and testament, or your will. Your will outlines how, and to whom, your assets should pass upon your death. It additionally names an executor to manage your estate. The executor’s duties include collecting estate assets, paying estate creditors, and distributing any remaining assets to the appropriate beneficiaries.

The power of attorney names agents to make financial and legal decisions on your behalf. While this document is only effective during your life, it becomes crucial if you lose the capacity to make those decisions for yourself due to a decline in health.

If you do not have a power of attorney in effect when you lose capacity, your family may need to resort to the time-consuming and expensive process of having the court appoint a guardian for you.

A health care proxy and living will appoint agents to make healthcare decisions for you when you are unable to make those decisions for yourself and allows you to outline your wishes for medical treatment in a variety of situations.

These documents ease the burden on your family, who may otherwise have to guess at your wishes and feel guilt at the thought that they made the wrong choice.

A revocable trust is a convenient and flexible way to pass your assets to your family upon your death without having to wait for the sometimes lengthy process of probate or administration. During your life, you will serve as trustee and maintain complete control over any assets owned by the trust and you may make any desired changes to who and how your assets will pass.

Upon your death, a successor trustee that you have chosen will take over management of the trust and will distribute assets to the individuals or organizations you have named as beneficiaries in the trust.

An irrevocable trust is a way to protect your assets from creditors, divorce, and estate and inheritance taxes. Any assets you transfer into an irrevocable trust, after a set look-back period, will be out of reach of creditors, including Medicaid.

Real Estate Deeds & Partitions – Estate Matters

Often when a close family member passes, there is real estate that needs to be addressed.   This may involve a sale to a third party, a transfer to a family member, or a buyout.  We can assist with transferring, or selling real estate.

We can guide you through the process of the sale of family real property, co-op apartments and condominiums.

We can also assist in transferring the deed of your property, or transferring the shares of a co-op apartment so that when it comes time to sell the property, things are in order.

Sometimes, family members disagree about whether a property should be sold.  This can cause an asset to be tied up preventing one party from getting their inheritance.

We can help by filing a lawsuit in Supreme Court for Partition wherein we seek the court’s assistance to compel the sale of property and we will insure that you get what you are entitled to receive under the law.

Wills & Estate Planning All Done Online

A will is a document that outlines how and to whom one’s estate should be dispersed at the time of death. Attorney drafted and supervised wills goes into what is called probate at the time of death and an estate executor is appointed.

For those in New York without a will, their estates are classified as intestate, in which the estate enters a court process known as Administration. For those estates that pass through Administration instead of probate, the process can be time-consuming and costly. In addition, disputes often occur between families and potential heirs. Also frustrating, estates passing through Administration are required to pay an often expensive bond to secure the estate’s assets. Even riskier, without a will in place, the court will automatically disperse an estate’s assets among next of kin, even if this is not the decedent’s wishes.

How can I make a will?

Compared to costly alternatives, drafting a will is a simple, affordable, and easy way to transfer one’s estate to heirs. Most people do not know that the only copy of a will that will be valid in court is the original copy. Without an original copy, the court presumes it has been destroyed by the decedent and the estate is put into Administration proceedings. A best policy is to leave the original copy in the hands of a trusted estate attorney. Our firm maintains a guarded safe deposit box to ensure your will is never lost, stolen or destroyed. Additionally, our law offices can help keep your will updated through the years at little cost to you in order to help ensure it accurately reflects your changing estate and wishes.

The Law Offices of Zelenitz, Shapiro & D’Agostino, P.C. are skilled NY estate attorneys who can draft your will in a matter of hours.