We understand how difficult it is to cope with the death of a loved one while trying to figure out probate and trust and estate administration. We have professional services available to help ease your burden. You can relax knowing that the job is being done right by people who care. We are here to help you both during the planning process,and when a loved one passes. The following information will answer many of your basic questions. Please call us so that a probate attorney on our team can help you and your family.
What is Probate?
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.
To Probate or Not to Probate?
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.
How to REALLY Avoid Probate?
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!
Is There Probate if Someone Doesn’t Have a Will?
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.
Does Everything Go Through Probate?
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.
Can I Avoid Probate Without Hiring a Probate Lawyer?
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.
Should I Name My Child, My Sibling, or a Professional as Executor Under My Will?
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 last wills & testaments. 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?
What Happens if I Don’t Name an Executor?
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!
I’ve Been Named an Executor! What Do I Do Now? (Advice for Executors)
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 Russo Law Group, 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.