Losing a loved one is incredibly difficult. Emotions are high and the last thing you want to do is handle your loved one’s estate. Unfortunately, sometimes the probate can’t be avoided. So, what do you need to know about a probate proceeding?

FAQs

Q: What is a probate proceeding?

A: Probate is the legal process of submitting a person’s Last Will and Testament (after he or she has passed away), to the Surrogate’s Court. The court has to review the Will and authenticate its validity and proper execution. Once the Surrogate’s Court approves the Will, it will appoint the Executor nominated under that Will to be the fiduciary – the person authorized to handle the decedent’s affairs.

 

Q: When is a probate proceeding required?

A: A probate proceeding is needed when the deceased person had “probate assets”. A person’s gross estate is comprised of two types of assets – probate assets and non-probate assets. Probate assets are assets that were just owned by the person who passed away. Because these assets were solely owned by the decedent, the nominated Executor is required to go to the Surrogate’s Court to have the Will probated and the Executor appointed in order to access the probate assets. The other type of assets is non-probate assets. These are assets that the decedent owned but states in the title of the asset what should happen to the asset upon death. These non-probate assets do not need to go through the probate process because they pass by operation of law upon the person’s passing.

 

Q: What is the process for an Executor or an Administrator to be appointed?

A: Both an Executor and Administrator are appointed by the Surrogate’s Court. An Executor is someone nominated in the decedent’s Will. An Administrator is appointed when a person dies without a Will. The process begins with a petition to the Surrogate’s Court, obtaining Waivers and Consents from the closest living blood relatives, and preparing other appropriate documents. Upon submission of all required documents, the Surrogate’s Court will appoint the Executor or Administrator. The Surrogate’s Court will issue a legal document to the Executor known as Letters Testamentary or a legal document to the Administrator known as Letters of Administration. This certificate authorizes the Executor or Administrator to deal with all matters, including the finances, of the decedent.

 

Q: How can you avoid a probate proceeding?

A: There is a common misconception that probate is bad, but there are certain situations where a probate proceeding is of benefit. However, if your goal is to avoid probate, then when you’re planning, you have to make sure that you title all of your assets properly so that each asset will pass by operation of law, as non-probate assets upon your death. You can also establish a living trust funded with your assets in order to avoid probate.

Planning Ahead

We strongly recommend that you plan ahead and review the titles and beneficiary designations for all of your assets – this is something that needs to happen on an ongoing basis. It’s never too early to be prepared. Now is the time to think about your Last Will and Testament and plan for your future.

  • … My spouse died, and I am the surviving tenant by the entirety of our house?
  • … My parent died, and I am the surviving joint tenant of our house?
  • … I inherited a house from a relative and now reside in it, and have been making the monthly mortgage payments?
  • … I transferred my house to a living trust for Medicaid planning and/or to avoid probate?

The answer to all four of these questions is an astounding: NO!

 However, sometimes banks and mortgage lenders will still try to enforce a “due on sale” clause on an existing loan or mortgage. Due on sale clauses allow lenders to accelerate or “call in” the loan or mortgage and demand payment of the entire balance upon the transfer of the title to the property securing the loan.

The Garn-St. Germain Depository Institutions Act of 1982 is a federal statute which governs the enforceability of “due on sale” clauses in loan and mortgage contracts. Notwithstanding, certain transfers of property, subject to an existing mortgage (other than a reverse mortgage), are exceptions prohibiting a lender from enforcing a due on sale clause.

For example, a lender is prohibited from exercising its option to enforce a due on sale clause upon a “transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety” (when the surviving joint tenant/tenant by the entirety takes title to the property after a joint tenant/tenant by the entirety dies), a “transfer to a relative resulting from the death of a borrower” (when a relative takes title to the property via inheritance and then resides in the property), and a “transfer into a inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property” (when title to the property is transferred into a living trust such as a Medicaid Asset Protection Trust).

It is important to note the significance of the last exception for property owners transferring a house with an existing loan or mortgage (other than a reverse mortgage) into a Medicaid Asset Protection Trust for Medicaid planning and/or the avoidance of probate. A Medicaid Asset Protection Trust is an inter vivos living trust wherein the grantor, who is the loan or mortgage borrower, retains the right to occupy the property and is a beneficiary of the trust.

In all of the above situations, pursuant to the Garn-St. Germain Act, the lender is barred from calling in the loan or mortgage.

The Garn-St. Germain Act provides certain rights and protections to a surviving spouse, a surviving joint tenant, a surviving tenant by the entirety, and a relative who inherits, when property with an existing loan or mortgage (other than a reverse mortgage) is transferred. The death of a loved one is an emotional time, never mind having to worry about a lender calling in the balance due. The Garn-St. Germain Act also recognizes that a property owner may engage in estate planning and transfer property with an existing loan or mortgage (other than a reverse mortgage) to a living trust during life.

We understand the rights and protection you are afforded under the Garn-St. Germain Act. It is important when transferring the title to a house subject to an existing loan or mortgage (other than a reverse mortgage), whether upon death or during life, to consult with and retain attorneys experienced with the transfer of property. Russo Law Group, P.C., has knowledgeable attorneys who can provide professional services and advise you.

We invite you to take advantage of our comprehensive website as well as our free seminars and webinars to learn more about how Russo Law Group, P.C. may assist you.

If you die without a Last Will and Testament or a Trust, the New York State laws of intestacy will govern the disposition of your property to your “distributees”, your closest living blood relatives (in priority order). However, if you execute a Last Will and Testament or a Trust, you can control the disposition of your property. For this very reason, it is important to seek counsel from an estate planning attorney who can draft a Last Will and Testament or a Trust to fulfill your intentions.

There are three ways to distribute your property to your beneficiaries upon your demise: “Per Stirpes”, “By Representation”, and “Per Capita”. So, what do they mean?

  • Per Stirpes is derived from the Latin term meaning “By the Root” or “Down the Line”. It means inheriting property by a right of a deceased ancestor. For example, if your children are your beneficiaries, and a child predeceases you, then the deceased child’s children (your grandchildren), would equally inherit the share of your predeceased child (their respective parent). However, in the event that more than one child predeceases you leaving children (your grandchildren from more than one child), all of your grandchildren, as a generation, would not receive an equal inheritance.
  • By Representation means “By Generation”. For example, if your children are your beneficiaries, and a child predeceases you, then the deceased child’s children (your grandchildren), would equally inherit the share of your predeceased child (their respective parent).  However, in the event that more than one child predeceases you leaving children (your grandchildren from more than one child), all of your grandchildren, as a generation, would receive an equal inheritance. The shares of all of your predeceased children would be combined and divided equally among the next generation — all of their children (all of your grandchildren) — not just their respective children.
  • Per Capita is derived from the Latin term meaning “Per Head”. For example, if your children are your beneficiaries, and a child predeceases you, then your surviving children and the deceased child’s children (your grandchildren) would all receive an equal inheritance.

Let’s look at a hypothetical that demonstrates the different dispositions which can result from a Last Will and Testament or a  Trust which provides for “my children, per stirpes”, “my children, by representation”, or “my children, per capita”. In this case scenario you have fo,ur (4) children, Child A, Child B, Child C, and Child D, who are each one-fourth (1/4) beneficiaries. You are survived by Child B and Child D. However, Child A and Child C have predeceased you. Child A is survived by two (2) children (A1 and A2) and Child C is survived by three (3) children (C1, C2, and C3). So, you have a total of five (5) grandchildren.

“my children, per stirpes”: 

  • Child A’s two (2) children equally share Child A’s one-fourth (1/4) share, and each receive a one-eighth (1/8) share.
  • Child C’s three (3) children equally share Child C’s one-fourth (1/4) share, and each receive a one-twelfth (1/12) share.
  • Child B and Child D each receive a one-fourth (1/4) share.

Pursuant to a disposition to “my children, per stirpes”, the children receive an equal inheritance, but the grandchildren do not receive an equal inheritance.

“my children, by representation”: 

  • Child A’s two (2) children and Child C’s three (3) children equally share the combined total shares of Child A and Child C (one-half (1/2)), and each receive a one-tenth (1/10) share.
  • Child B and Child D each receive a one-fourth (1/4) share.

Pursuant to a disposition to “my children, by representation”, the children, as a generation, receive an equal inheritance, and the grandchildren, as a generation,  receive an equal inheritance.

“my children, per capita”: 

  • Child A’s two (2) children and Child C’s three (3) children and Child B and Child D equally share the combined total shares of all children A, B, C, and D, and each receive a one-seventh (1/7) share.

Pursuant to a disposition to “my children, per capita”, all of the children and grandchildren receive an equal inheritance.

As you can see, the ultimate distribution of your property to your children and grandchildren can vary significantly depending upon the whether the disposition is “per stirpes”, “by representation”, or “per capita”. So, if you do not want your property to be subject to intestate distribution and you do want to control how your property passes (especially in the event that a beneficiary of your Last Will and Testament or your Trust predeceases you), you should retain an estate planning attorney to draft a Last Will and Testament or a Trust that clearly states your intentions. On the other hand, if you are a beneficiary of a Last Will and Testament or a Trust, it is important that you retain a Trusts and Estates attorney to represent your interests as a beneficiary and to insure that you receive your proper inheritance.

Russo Law Group, P.C. has attorneys experienced with estate planning and beneficiary representation. We invite you to take advantage of our comprehensive website as well as our free seminars and webinars to learn more about how Russo Law Group, P.C. may assist you.

When advising clients regarding Medicaid asset protection planning, it is common to recommend the transfer of their residence (and other properties they may own) to a Medicaid Asset Protection Trust (“MAPT”). After five years, the trust assets would not be considered an available resource for purposes of determining Medicaid eligibility.

One of the most frequently asked questions regarding this planning technique is whether the house can be sold.  The answer to that question is “Yes”. However, there are a number of factors to be considered:

  • Who is selling the house?
  • Who gets the money from the sale?
  • Are there any capital gains taxes?

These are all good questions.  Let’s look at them in order –

Who is selling the house?” When property is in a MAPT, the trust is the seller and the Trustee is the person who has the authority to sell and sign the closing documents.

Who gets the money from the sale?” The proceeds of the sale of the house owned by a MAPT are payable to the trust.  This is important in order for the trust assets to remain protected, and not be considered an available resource for Medicaid purposes. The trustee would need to open a bank account and deposit the proceeds for further investment, or to use all or a part of the proceeds to buy a new house.

Finally, Are there any capital gains taxes?” Typically, a MAPT is established as a “grantor trust”.  For IRS purposes, this basically means that the person who set up the trust (you, the “Settlor”) is considered to be the “owner” for income tax purposes.  So, the trust would then benefit from utilizing the Settlor’s $250,000 capital gains tax exclusion, even though the trust is selling the property, and not the Settlor.  This, of course, assumes that the Settlor qualifies for the capital gains tax exclusion under the IRS regulations.

It is important when selling a house from a trust, especially a MAPT, to consult with and retain attorneys experienced with the sale of property from a trust and the Medicaid eligibility laws. Russo Law Group, P.C., has knowledgeable attorneys who can advise you and your Trustee.

Russo Law Group, P.C. can provide professional services to advise you of your spousal rights. We invite you to take advantage of our comprehensive website as well as our free seminars and webinars to learn more about how Russo Law Group, P.C. may assist you.

The Right of Election of a surviving spouse of a New York decedent has been in existence since September 1, 1930. Prior to the enactment of New York’s Right of Election law, a surviving spouse possessed dower and curtesy rights. Today, if a surviving spouse inherits less than one-third of the net estate, the surviving spouse has a Right of Election.

The following are five frequently asked questions regarding the Right of Election of a surviving spouse of a New York decedent:

1. What is New York’s Spousal Right of Election?

The surviving spouse of a New York decedent dying on or after September 1, 1992, has a personal Right of Election to the greater of $50,000, or one-third of the decedent’s net estate, calculated as of the decedent’s date of death. This pecuniary amount is known as the Elective Share.

The surviving spouse has the Right of Election unless the right is waived, is not timely asserted, or if the surviving spouse engaged in disqualifying conduct such as abandonment, failure to support, and divorce.

2. How is the Spousal Right of Election Exercised?

The surviving spouse must serve a Notice of Election upon the Executor or Administrator and record the original with the Surrogate’s Court. The Right of Election must be exercised within six months of the issuance of Letters Testamentary or Letters of Administration appointing an Executor or Administrator.

The court can extend the time to file the Notice of Election for six months and can grant further extensions upon reasonable cause, but not
beyond two years after the decedent’s death.

3. How is the Elective Share calculated?

The decedent’s Net Estate is calculated by including all probate assets (passing under a Last Will and Testament or via Intestacy), and certain non-probate assets (passing by operation of law), less debts, administration expenses, and funeral expenses. Estate taxes are not deducted. These non-probate assets are known as Testamentary Substitutes.

The surviving spouse is not entitled to interest on the Testamentary Substitutes during the course of the administration of the estate or to the specific property. The surviving spouse is entitled to receive money representing the date of death value of the property on a pro-rata basis from the beneficiaries.

4. What are Testamentary Substitutes?

a. Gifts made in contemplation of death (revocable gifts which are subject to surviving a stated contingency);
b. Outright gifts made in the last year of the decedent’s life (excluding annual exclusion gifts and gifts of direct tuition and medical payments);
c. Totten Trusts (“In Trust For” bank accounts);
d. Jointly owned property (including U.S. savings bonds and securities) to the extent of the decedent’s contribution:
e. Certain pension and retirement plans;
f. Certain lifetime trusts and contracts (including annuities, but excluding life insurance); and
g. General powers of appointment.

5. Which assets received by a surviving spouse will be credited toward the satisfaction of the Elective Share?

Only absolute dispositions of property passing from a decedent to a surviving spouse will be credited toward the satisfaction of the Elective Share. An example of an “interest passing other than absolutely” is property that does not consist of the decedent’s entire interest or an interest in a trust or a trust equivalent created by the decedent. An example of a trust equivalent is a legal life estate in real property.

Russo Law Group, P.C. can provide professional services to advise you of your spousal rights. We invite you to take advantage of our comprehensive website as well as our free seminars and webinars to learn more about how Russo Law Group, P.C. may assist you.