Estates

What we handle:

Uncontested Services Administering & Settling Small Estates Probating Wills Intestacy (Dying with no will) Estate & Trust accountings Representation of Executors & Trustees Representing Beneficiaries

Contested Services Will Contests – Disinherited Heirs Fiduciary Removal Proceedings Kinship Proceedings – Establishing Heirship Spousal Inheritance Disputes Contesting Powers of Attorney Breach of Fiduciary Duty Fraudulent Transfers

What you should be aware of:

Estate Administration

1. Simply put, the legal services required in processing a person’s affairs after death is the area of law is known as estate administration.

2. Generally, the estate administration process can be divided into the following stages:

• Initial Court Proceeding: probating the Will in the Surrogate’s Court, or if the person died without a Will (intestacy), filing an “administration” proceeding in the Surrogate’s Court.
• Nuts and Bolts Estate Administration: collection, inventory and valuation of assets; sale of decedent’s real estate and other assets; record keeping and computerization, raising cash requirements, payment of expenses, debts and legacies, filing of income tax returns, including fiduciary income tax returns, filing of Surrogate’s Court inventory.
• Estate Tax Returns: preparation and filing of the Federal estate tax return; preparation and filing of the New York estate tax return; post-mortem estate planning, including disclaimers, renunciations; selection of a tax year for the estate; timing of distributions; QTIP elections, alternate valuations, excess deductions on termination; the generation skipping tax; preparing and handling of audits.
• Accounting & Settlement: preparation of fiduciary’s accounting – judicial versus non-judicial accountings; final distributions of estate assets and payment of commissions; finalizing all aspects of the estate.

Probate

1. If you are named as an executor in a Will and are seeking an attorney to probate the Will and assist you in administering the estate, you should be aware that you are not legally bound to retain the attorney who drafted the Will or handled the decedent’s affairs.  Elniski Law represents executors, administrators, and trustees for reasonable fees in a timely and pro-active fashion without having previously performed legal work for the decedent.
2. Probate in New York State refers to the legal proceeding that takes place in the Surrogate’s Court. The first purpose is to validate the decedent’s last Will and judicially appoint the executor named in the Will to administer the assets and settle the estate.  Every situation is unique and thus it is important to receive guidance in estate and probate matters so that families of decedents avoid conflict or burden.  Additionally, there is much paperwork to sift through and contact with the court and beneficiaries.

1. Probating a Will is the first step in any estate administration.  The Will must first be located, then submitted by the Executor who must make sure that the probate is handled quickly and efficiently.  New York requires that all beneficiaries and fiduciaries named in a Will as well as all of the decedent’s distributees (all people who would benefit if no Will) be notified that the Will is being submitted to probate.  Any person who does not believe in the validity of the Will is given an opportunity to appear in Court and object.  Such a person may sign a waiver and consent form indicating he or she consents to probate as well.  In most cases, no one has any objection to the Will, and once it is determined that the Will was properly executed in accordance with New York law, it will be admitted to probate and the person or persons named are appointed Executors.  In some instances the witnesses to the Will may be required to testify that the Will is valid

Beneficiary Rights

1. Disharmony can arise among a decedent’s surviving family members when their loved one’s personal belongings, real estate and investments are being collected and disbursed.  As a beneficiary, you have the right to information about your loved one’s estate.  Legal remedies can be necessary sometimes in order to protect the interests of beneficiaries such as:

• Not being advised of the nature and scope of the decedent’s estate
• Waiting long periods of time for the Executor to initiate the process of distributing assets
• Challenging fiduciary misconduct, fraud or mismanagement
• When terms of the will are not followed by the Executor
• When assets are wrongfully transferred or misappropriated prior to the decedent’s death
• A beneficiary is entitled to a copy of the estate’s “List of Assets-Inventory” which the fiduciary is required to file with the Surrogate’s Court, which summarizes all of the assets and lists both the probate and non-probate assets of the decedent and which are valued as of the date of death.
• A beneficiary is entitled to an accounting that lists the estate‘s assets, income, debts, expenses, taxes and distributions.
• A beneficiary is entitled to receive his/her inheritance timely, but this can depend upon the complexity of the estate.
• A beneficiary can request Surrogate’s Court to remove an Executor or Administrator if fiduciary misconduct is found.

2. An executor or administrator has a duty to administer the estate for the benefit of the beneficiaries in accordance with the laws of the State of New York.  Unfortunately, this does not always occur. Sometimes they intentionally try to deny a beneficiary what is owed.  Other cases come down to a simple matter of mismanagement or lack of understanding.  Many cases fall in that gray area in between, where the facts and explanations are not clear, or do not add up.  In all of these situations, the beneficiaries have been denied what is owed them.