By: Akanksha A. Panicker
When an individual dies leaving a Will, the probate proceedings must be set into motion. Probate essentially is the approval of the terms of the testator’s will by a judge to ensure that the assets and possessions are distributed to the decedent’s beneficiaries without a snag. An individual who dies intestate or leaving assets worth less than USD 50,000 does not need to follow the same procedure. An executor is appointed to smooth the proceedings but can only begin the procedure once the will is admitted to probate by the county of demise’s Surrogate Court. This process needs to be initiated to verify that the will is valid and accurately reflect the testator’s wishes. The Surrogate’s Court appreciates the assets, property, and possessions [collectively called the estate] by the beneficiaries’ names in the will.
[1.0] WHAT DETERMINES THE VALIDITY OF THE WILL?
A New York Will needs to be signed in the presence of at least two witnesses, each of whom must sign in the presence of the other. Furthermore, it is imperative for the person who makes to do so of their own free will. Undue influence and duress render the will invalid. It is necessary to prove that the individual is of sound mind.
What prerequisites are necessary? It is unnecessary to have a lawyer make one’s will; individuals can make their own wills in New York. However, if the will is likely to be contested, it is recommended to have an attorney involved in the process.
It is necessary to declare to the witnesses that the document they are signing or acknowledging is the testator’s will. They are also required to supplement the signature with their addresses. Furthermore, witness signature must be obtained in the testator’s physical presence, the latter required to sign at the end of the will. The protocol usually renders anything that is not a self-proving affidavit attached after the signature of the decedent non-cognizant. It is not necessary for the individual to immediately sign in front of their witnesses. New York law allows for up to thirty days for the witnesses to observe the testator’s signing of their will.
A self-proving will is not a necessary step. If undertaken, it would require the testator and their witnesses to obtain notary concurrence. It significantly speeds up probate since the court is not obligated to contact the signatory witnesses insofar as the affidavit itself states the signatories’ identities and their knowledge of the content of the document signed.
If an individual dies without making a will, the assets will be distributed to the beneficiaries according to New York intestacy laws, wherein the property is distributed amongst the decedent’s family according to their degree of kinship. If the decedent had no surviving eligible relatives by blood or marriage, the property is returned to the State. If the person who died had less than $50,000 of personal property, then a small estate (also called a voluntary administration) can be filed instead, which will be ‘administered’ rather than subject to the probate process. It must also be noted that there is no requirement for probate when there are spoken-for or designated beneficiaries. This would include proceeds of insurance policies not payable to the estate, joint accounts, retirement accounts [401k or IRA.], or ‘in-trust-for’ accounts.
[2.0] HOW TO FILE A WILL IN NEW YORK
The probate process would require the filing of the original will and probate petition. The representative appointed by the court-the executor- needs to file the petition with the original copy of the documents. The legal credentials that appoint the executor are called the ‘letters testamentary,’ and they empower the executor to act in a fiduciary manner on behalf of the estate. It is necessary to present the letter of testamentary and the death certificate to establish the executor’s authority. If any individual believes that the will is invalid, a will contest may be initiated by filing objections to the probate. An executor’s commission may be gauged, considering the Surrogate’s Court charges probate filing fees based upon the gross estate’s value.
If an individual dies intestate or by a ‘small estate proceeding,’ it is still necessary to wind up the estate’s affairs. The void herein is filled by a court-appointed administrator issued a letter of administration, giving them the authority to work on behalf of the estate. Even though the administrator is often the deceased’s spouse or next-of-kin, the position may be filled by any individual interested in the estate.
The probate court might enforce a requirement to post a bond insuring the estate against potential loss. Most wills will demur the requirement for a said bond. If this is not the case, an agreement in writing by the beneficiaries of the will to set it aside is sufficient. However, a bond is always ordered if the executor lives out of state or is not the same individual named in the will, although the estate’s size determines the bond amount.
[3.0] RESPONSIBILITIES OF THE EXECUTOR
Being the Executor of a will is a hard task. The Executor of the will have the responsibilities of [A.] locating and inventorying the property of the deceased and transferring it to the estate, [B.] paying off bills and taxes, [C.] appraising the property and collecting debts owed to the estate, [D.] managing the assets during a time of the probate and [E.] allocating the property to the consenting beneficiaries at the culmination of the probate proceeding.
The filing of the petition in Surrogate’s Court would require the death certificate and the individuals named in the will and estimate the proceeding’s value. Furthermore, there must be a list enclosed of the heirs-at-law if the will is deemed invalid, and all of these individuals must be notified of the probate’s occurrence.
The Executor must undertake a thorough search and inventory of the decedent’s assets since the responsibility of paying the taxes on the same and distributing to the beneficiaries is solely on them. All probate assets must be transferred into the estate’s name, requiring communication to banks or insurance companies.
When it comes to the assets’ inventory, the Executor’s deadline is either six months from their appointment or the date of the due federal or state estate tax return. The later date of the two is preferred but must contain the property’s absolute value at the demise’s date. It is also acceptable to file the tax return with an obligatory cover sheet but render the return a public document.
Alternatively, the federal or state estate tax return can be filed instead of a separate inventory. However, if the tax return is filed, a special cover sheet is still required in each county, and following its filing as an inventory, the tax return will become a public document. The Executor is also responsible for paying any estate taxes and filing any estate tax returns required, even if no tax is due.
[4.0] SERVICE OF NECESSARY DOCUMENTS
The bereaved should not have to worry about legal proceedings. However, complications are likely to arise in locating the parties or acquiring jurisdiction or even with ambiguity in the will itself. Furthermore, in the case of contesting a will, the need for a process server multiplies.
Before the letters testamentary or letters of administration are filed in court, a notice must be outlined in the proceeding stating the name of the testator, the name and address of the proponent, and the testator’s will been offered for probate or probated. This notice needs to bear the name and post-office address of each person named or referred to in the petition, which has not been served or has not appeared or waived the process. Furthermore, these demurring individuals’ designation should be stated, which would include how they were named or referred to: as a legatee, devisee, trustee, guardian or substitute or successor executor, trustee, or guardian.
This notice needs to be filed with an affidavit of proof and mailed to every individual named in the notice unless their name and address cannot be located. The process must set forth the name of the proponent.
A particular issue that arises in both probate and intestate cases is proving that the individual is sufficiently close in kinship to the decedent. This is done to verify the beneficiary’s status and eliminate the possibilities of unknown heirs. It is also necessary for the next of kin to sign the served Waiver and Consent Form to determine whether the will is contested. Failure to sign the form means the issuance of a Citation on the non-consenting individuals and the setting of a court date to contest the will. Failure to sign the same would render an issuance of a Citation to be served. All Waivers and Proofs of Service must show that each interested party actually received a copy of the Will, and the Proofs of Service of Citation must be filed with the Court at least two (2) working days before the return date.
Estate planning in New York involves the preparation of different documents. It can be difficult to keep track of things after a recent bereavement. Consequently, the individual responsible for the disposition of estate assets must be efficient and decisive and verify the intended beneficiaries’ identity and keep track of the estate. Individuals who are disinherited or overseen can get resentful and believe undue influence to be responsible for the omission. It is necessary to adhere to the court’s requirements to preserve the last wishes of the decedent.
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1.New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 3-1.1
Who may make wills of and exercise testamentary powers of appointment over property
Every person eighteen years of age or over, of sound mind and memory, may dispose of real and personal property and exercise power to appoint such property.
2.N.Y. Estates, Powers & Trusts Law § 3-2.1.
3.ARTICLE 13 SETTLEMENT OF SMALL ESTATES WITHOUT COURT ADMINISTRATION
§ 1301 Surr. Ct. Proc. Act. Definitions
In this article:
1. A small estate is the estate of a domiciliary or a non-domiciliary who dies, leaving personal property having a gross value of $30,000 or less exclusive of property required to be set off under EPTL 5-3.1 (a).
2. A voluntary administrator is a person who qualifies and undertakes to settle the estate of the decedent without the formality of court administration as hereinafter provided
4. New York State Unified Court System. (n.d.). Small Estate Affidavit Program. Retrieved October 29, 2020, from http://nycourts.gov/courthelp//diy/smallestate.shtml
5. SCPA §1403(1)(g)
6. New York Consolidated Laws, Surrogate’s Court Procedure Act – SCP § 1403. Persons to be served; content of the process
(a)The distributees of the testator.
(b) The person or persons designated in the will as executor except that a person designated in the will as substitute or successor executor in the event the designated executor cannot act or fails to qualify need not be served where the designated executor is under no disability.
(c) Any person designated in the will as a beneficiary, executor, trustee, or guardian, whose rights or interests are adversely affected by any other instrument offered for probate that is later in the date of execution or which amends or modifies an instrument offered for probate.
(d) Any person designated as a beneficiary, executor, trustee, or guardian in any other will of the same testator filed in the surrogate’s court of the county in which the propounded will is filed whose rights or interests are adversely affected by the instrument offered for probate.
(e) If the propounded will expressly refer to an instrument which created a power of appointment and purports to exercise such power of appointment, any persons designated in the instrument that created such power of appointment whose rights or interests are adversely affected by the instrument offered for probate.
(f) The testator, in any case where the petition alleges that the testator is believed to be dead.
(g) The state tax commission in the case of a non-domiciliary testator.
(h) Where any person to whom process is required to be issued has died, the process shall issue to his fiduciary and if none has been appointed, to all persons interested as distributees, nominated fiduciaries or named as legatees or devisees under any will of the deceased filed in the court.
(i) The provisions of section three hundred fifteen shall apply to a proceeding under this section.
2. The process must set forth the name of the proponent, and if the will is nuncupative, that fact