Tags Posts tagged with "Probate"


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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: My brother John died unexpectedly. John never married and has no children. He had a Will in which he named me as executrix and left everything to me and my sister, Julie. The only assets John had was a bank account with a balance of $22,500.

THE QUESTION: What do I need to do to close that account so the money can be divided between me and Julie?

THE ANSWER: In most cases when someone dies with assets and a will, the person named in the will as executrix must file a petition with the surrogate court in the county where the decedent lived seeking letters testamentary. Once letters testamentary are obtained and the executrix has obtained a taxpayer identification number from the IRS, the executrix can go to the bank to close the account.

It is noteworthy the bank will not write checks to beneficiaries of the estate but, will only write a check for the balance in the account payable to the estate. That check must be deposited in an estate account from which the distributions to the beneficiaries can be made. 

In your case, since the value of John’s assets is less than $30,000, you need not obtain letters testamentary. Instead you can file an affidavit with the surrogate‘s court as part of a small estate administration. The filing fee is $1 and the form is less involved than the one used to file for letters testamentary. You will have to provide the name and address of the bank, the account number and the account balance and information on who is entitled to the funds.

Once the affidavit is accepted, the court will send you a certificate that gives you the authority to close your brother’s bank account. You will receive a separate certificate that gives you the authority to open an estate account into which you need to deposit the check issued by the bank.

To insure that the affidavit is prepared and filed correctly, I recommend that you retain an attorney with surrogate’s court experience to represent you. That way you can be sure the process will go as smoothly possible.

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected].

By Nancy Burner, Esq.

While discussing an estate plan with a client, she stopped me and said “What is probate.” Sometimes we forget to explain the simplest concepts. Probate is the process by which a last will and testament is given effect. Under New York State Law, a will is admitted to probate after the executor files a Petition for Probate with the decedent’s will attached and gives proper notice to the individuals that would have inherited from the decedent had the decedent died without a will. The proceeding for the probate of a will takes place in the Surrogate’s Court in the county where the decedent resided at the time of his or her death. The probate proceeding gives the interested parties (distributees) the right and opportunity to object to the probate of the will.

Typically, we advise that a client that creates a will consider if there are any circumstances that will make the probate proceeding an expensive one. For instance, is any distributee being disinherited? If so, that disgruntled distributee may come to Surrogates Court and object to the will. The litigation objecting to a will can be long and drawn out — and expensive as well. Are there missing heirs that must be found before the will can be probated? If so, it could be very expensive and time-consuming to find all the individuals that are required to be given notice and an opportunity to object. Is there real property owned by the decedent in different states? If so, then the will would have to be probated in each state. If any of these circumstances exist, you may want to avoid probate altogether.

We also suggest avoiding probate if you are the surviving spouse and your spouse is or has received Medicaid benefits. Medicaid has a lien against the spouse’s estate for any Medicaid benefits paid for the other spouse within 10 years of the death of the surviving spouse.

Another reason to avoid probate is if you have a disabled beneficiary as the Surrogate’s Court may appoint a guardian ad litem to protect that person’s interest. That could be another delay and cost to the estate.

The next question to consider is how do you avoid probate? One way to avoid probate is to name beneficiaries on all your accounts. But I rarely, if ever, suggest that a client resort to this solution without first considering the consequences. First, it may not be possible to name beneficiaries on all your accounts. What if your beneficiaries are minor’s or disabled? If that is the case, the minor or disabled beneficiary would have to have a guardian appointed to collect the bequest. This is also timely.

For minor’s, the guardian would have to put the money in a bank account, earn little or no interest and turn the money over to the beneficiary when he or she turned 18. If the account was a retirement account, the result is even harsher. The IRA or other retirement account would have to be liquidated, all income taxes paid and then put into a custodial account at a bank, earn little interest and then be paid to the beneficiary at age 18.

Most clients, when given the choice, would rather protect their heirs from divorcing spouses, Medicaid liens, creditors and taxes than avoid probate. We can protect beneficiaries by having their assets paid to trusts. This can be done in a will (and probate) or by avoiding probate altogether by using a revocable trust.

The important point here is that it is a mistake to make the avoidance of probate the overriding consideration when embarking upon an estate plan. Not everyone needs a revocable trust, but some people will be well served by using a trust, if the circumstances make probate impractical.

One size does not fit all. A successful estate plan takes all factors into consideration. In a world where people are computer savvy and everything is available on the internet, it is easy to believe that you can just do it yourself. The fact is attorneys are called counselors at law for a reason. The documents are only part of the problem and solution. The fact is, there is no substitute for competent legal advice.

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

By Linda M. Toga, Esq.

The Facts: I am named executor in my brother’s will. He died recently and his assets include a bank account and a house. Someone told me that since I am the named executor, I can close the account and sell his house simply by presenting the will.

The Question: Is that true?

The Answer: Absolutely not! Although you are named in your brother’s will as the executor of his estate, the surrogate’s court in the county in which your brother resided at the time of his death must admit the will to probate and issue letters testamentary to you before you can take any action with respect to your brother’s assets.

In other words, you must establish to the court’s satisfaction that the will is valid before you are able to act as executor. You cannot assume the responsibilities of executor without the court’s explicit approval.

The complexity, cost and time involved in having a will admitted to probate will vary with the number of beneficiaries named in the will, as well as the number of heirs to the estate, the ease with which your attorney can locate the beneficiaries and heirs, how cooperative those people may be with the attorney in moving forward, the value of the estate and whether anyone contests the admission of the will to probate, among other factors.

While the probate process can be straightforward and relatively inexpensive, there are numerous issues that can arise in the probate process that are best handled by an experienced estate attorney. Some of the most common issues with probate are not being able to locate individuals who are entitled to notice and dealing with individuals who contest the validity of the will.

Fortunately, the percentage of cases where a will is contested and ultimately not admitted to probate is small but, if there are objections filed to the probate of a will, the process can drag on for quite some time, significantly increasing the expenses of the estate.

Assuming the probate process goes smoothly and your brother’s will is ultimately admitted to probate, you will be issued letters testamentary by the court. Only then will you be in a position to marshal your brother’s assets, pay any legitimate outstanding debts your brother may have had, and make distributions in accordance with the wishes set forth in your brother’s will.

Once you have located and distributed your brother’s assets, you will be required to file with the court an inventory of your brother’s assets and releases from the beneficiaries stating that they received the bequests to which they were entitled under the will.

Linda M. Toga provides personalized service and peace of mind to her clients in the areas of estate administration and estate planning, real estate, marital agreements and litigation from her East Setauket office.