Probate is the legal process of submitting to court for approval the will of someone who has passed away. The court validates the will and legally appoints the executor named under your will. An executor is responsible for carrying out the affairs of the estate, including collecting assets, paying debts, such as taxes, and distributing estate assets in accordance with the will.

Many people want to avoid probate. It is a common misconception that probate in New York can take over a year and can be expensive. We can counsel you as part of your estate plan so the headache and expense can be avoided, as well as the time delay. It is common for a probate to only take a couple of months when it is handled correctly.

But there are times due to certain circumstances that probate can take over a year to complete and it can be expensive. A probate lawyer at our firm can help expedite the process and keep the fees down.

We can help you avoid probate. But, before you decide that avoiding probate is your personal goal or your New Year's resolution, it's important that you realize that avoiding probate does not mean avoiding estate taxes and trust and estate administration. Avoiding probate may not make the estate settlement process less complicated or time-consuming.

Estate and tax planning with our firm will give you a personal understanding of the strategies that make the most sense for you, given your situation and your goals. For your plan to work, your plan must be legally valid under New York law. Avoiding probate may be one of these goals, or you may find that it is in direct conflict with your other goals. We'll know, and you'll understand, soon after we meet. From there, it's time to execute the plan, and proceed quickly to achieve the goal that we all have: peace of mind.

We can help you really avoid probate by advising you as to the proper legal documents and how to name your assets and beneficiary designations. Forms to create a trust that are found in computer software, at stationery stores, and online are not written with your situation in mind and may not dovetail with New York law. This means that those forms will not give you and your family maximum benefit.

Usually a trust(s) is established to avoid probate, but establishing a trust alone does nothing! Assets must be transferred into the trust, or otherwise those assets must go through probate. It might seem silly, but it's shocking how many people visit our offices having paid for trusts by other firms, but never put any assets inside the trust.

Here's how we feel about it: Our firm's job is not done until all your ducks are in a row and your assets are where they belong. We will help you work with the banks and other financial institutions to make this happen. Everyone will sleep better then!

No. The process is instead called an Administration Proceeding. This proceeding is similar to a probate but is often more complicated. The Court has to decide on an Administrator to oversee the affairs of the estate. The Administrator is usually a family member. He or she has the same responsibilities as an Executor, but, in New York, because there is no will, the Administrator must distribute assets according to New York State law.

No! There are many assets that totally avoid probate (they can end up in probate if they are incorrectly titled, or if the wrong beneficiary is named). These may include IRAs, life insurance, and jointly-owned property.

But remember, even when assets avoid probate, they are still subject to estate administration after an owner dies. This includes the gathering and valuing of assets, the payment of debts and expenses, accounting of income and expenses, distribution of assets, and payment of taxes, just like in probate.

There are many reasons not to make avoiding probate a do-it-yourself project. You should not avoid hiring a probate lawyer to help with you with the trust and estate administration. Often, people do not realize how important it is to handle the estate administration properly, or else beneficiaries (even family members) can create a lot of problems for the Executor who is personally liable for any mistakes.

It depends on your family members. Do they have the knowledge, do they have the time, are they capable of handling any family disputes? The job of executor can be trying, time-consuming and difficult. That is why you need to think twice before you make that decision in your will.

You can control who the executor will be by naming that person in your will. This is usually a family member or friend who will be responsible for a variety of responsibilities (see the list below). To decrease the burden on any one family member or friend, some people name co-executors. Notwithstanding, an executor will always want to use the expertise of a probate attorney to provide professional help at the time the estate is being settled. For example, we recently saved a family over $30,000 in taxes because of taking certain legal steps during the estate administration.

You can also choose to name a professional executor (such as a law firm or bank or accountant) to carry out the wishes stated in your will. In addition to lifting the significant time burden involved on friends and family, a professional executor can often make the process go faster, anticipating any potential problems that may not be apparent to a friend or family member.

What are the benefits of working with a professional executor? Delays are avoided, arguments headed off at the pass, property and money go to whom you intended quicker. In some situations, why set up your family for an all out war because you have asked one of your children to be the peace keeper?

If you do not name an executor, or if the person that you name is unable or unwilling to be the executor, the court will appoint someone. This may result in someone being executor that you would not have wanted, or worse, a complete stranger!

Executors are responsible for:

• Gathering and valuing assets.
• Preparing and filing appropriate court documents.
• Overseeing the disposition of estate assets, in accordance with the will.
• Resolving any family disputes.
• Payment of debts and expenses.
• Accounting of income and expenses to the beneficiaries.
• Distribution of assets.
• Setting up trusts under the will.
• Preparing and filing of tax returns listed below in a timely matter:
  1. Final federal and individual income tax returns.
  2. Federal and New York estate tax returns.
  3. Federal and New York estate fiduciary income tax returns.

The team at Vincent J. Russo & Associates, P.C. is often asked by executors like yourself to help you through the administration process. A probate attorney on our team will make sure you understand the overall strategy, every step along the way, and the total cost.

Our law firm will:

• INFORM you so that probate and trust and estate administration are understood.
• GO to court for you to represent you as executor.
• ADVISE you of your duties and answer any questions.
• PREPARE and FILE appropriate court documents to relieve worry about finding the right forms, filling them in correctly, and driving to Surrogate's Court.
• PREPARE and FILE appropriate tax returns in a timely manner.
• ENSURE that the estate assets are distributed to the right people.
• RESOLVE any family disputes.
• ANALYZE AND DETERMINE how to save estate, individual income, and fiduciary income taxes.
• IMPLEMENT estate planning for beneficiaries, especially family members such as a surviving spouse and adult children.

Basic estate planning includes the use of a will, a comprehensive durable power of attorney, and health care directives, such as a health care proxy and living will. These directives help you avoid the kind of medical treatments that you don't want, if you are unable to communicate your wishes. Without these decisions, your loved ones will not be able to make decisions on your behalf. As your estate planning attorney, we will work with you to create an estate plan. You do not want to be the next Terry Schiavo.

In modern times, pre-and post nuptial agreements have become an important estate planning tool. It is important to take steps to protect what you have when entering into marriage. Unfortunately, the divorce rate is quite high.

Trusts, both irrevocable and revocable, are another tool that an estate planning attorney can use to help you accomplish the goals and wishes that you have for your money, your property, and most importantly, your family.

An estate tax planning attorney at our law firm will advise you of the many estate planning techniques that can help you minimize estate taxes. Annual gifting programs to family members and Unified Credit Shelter Trusts are two examples.

Depending on your personal situation and goals, more sophisticated techniques may make sense. These could include leveraged gifting (discounted gifts), family limited partnerships, and private foundations. This is an area where you want to rely on an experienced estate tax planning attorney to guide you through the many planning techniques that are available today.

You may have also heard that trusts are a popular method of accomplishing estate tax reduction. These include irrevocable life insurance trusts, credit shelter trusts, marital trusts, charitable trusts, GRATS, QPRTS, wealth replacement trust (inheritor's trust and SAFE w). It's our job, as your estate planning attorney, to evaluate your choices and make the best recommendation for you and your family. See our Probate, Trusts, and Estate Administration page.

If you are a business owner, it's very important to pay attention to the type of entity you have selected. Are you protected from personal liability? What type of corporate entity have you chosen, and is it your best choice? If you are starting a business, you should consider whether to be a Subchapter S Corporation or a limited liability company. We can help advise you as to the best business structure for you.

A legally valid buy-sell agreement can be critical to successful estate planning and ongoing tax planning. Even a family business should have a buy-sell agreement. You do not want the IRS deciding on the value of your business if you pass away. Often, life insurance is used as a tool to fund a buy out if one of the partners pass away.

Most people who set up living trusts do so in order to avoid probate. Is that the right decision for you? In our experience, there are five common situations when it makes sense to have a living trust:

ONE: You own property in multiple states and want to avoid multiple probates which entail additional court costs and legal fees.

TWO: You are thinking of appointing someone to handle your assets after you die, and you want to see how they'll do, while you are still alive and can make changes to your final plans.

THREE: You are planning on disinheriting a child and you are worried that the child may contest your will. A living trust makes it much more difficult for the child to successfully challenge your expressed desires set forth in the trust.

FOUR: You would like to make it easy for your children to settle your estate. Perhaps they live far away or they are very busy with jobs and their own families. Your estate will be settled quicker, probate will be avoided, and assets won't have to be collected before they can pass out of the trust.

FIVE: You want to leave assets to family who are not closely related to you and/or friends. In such a situation, the probate process will typically take longer and cost more. The living trust can make it easier for everyone involved.

If your situation sounds like one of the five above, a living trust may be a very smart move. Talk with an experienced estate planning lawyer on our legal team about your estate plan. We will listen to you and stand ready to provide you with peace of mind. Read much more about this topic at our Probate, Trusts, and Estate Administration page.