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Probate-FAQ’s

1. When is the reading of the will? Usually there is no formal “will reading” for the family. If you are the next of kin, you hopefully are aware of the estate planning attorney that your family member used. Please contact that attorney or law firm to inquire if there is a Last Will and Testament and if you are the nominated Executor (person in charge of the estate) named in the document.

2. What is Probate? The process by which the ownership of a person who dies assets are transferred if there is no designated beneficiary.

3. How do we begin the process? In New York a probate proceeding is commenced in the court known as the Surrogate’s Court. Each county has its own Surrogate’s Court. To begin the process you will need the original Last Will and Testament, if one exists. If there is no Last Will and Testament, there are Estate Administration proceedings available to you a well in the Surrogate’s Court

4. What does it mean if a bank or financial

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institution asks for “Letters
Testamentary”? Generally, if a bank or financial institution asks for “Letters Testamentary” it means that there is no designated beneficiary for that asset and you will need a court proceeding to collect the asset.

5. What does it mean to be a Beneficiary? If you are named as a designated beneficiary of an asset, the asset becomes yours without a court proceeding.

6. How do I collect an IRA or an Annuity? If you are named a beneficiary of an IRA or an annuity, you can collect the asset with a death certificate and without a court proceeding. However, please have the financial institution confirm two things: what are your options to collecting the account; and what are the income tax consequences to the collection of the account?

7. How do I collect an Insurance Policy? You should contact the insurance company who will provide a set of forms to collect the policy. You do not need a court proceeding to collect the policy if you are a designated beneficiary.

8. What are the tax implications of receiving an inheritance? First, you should consult your tax preparer if you are a beneficiary of an estate. And, while the distribution of the actual inheritance may not be an income event for you personally, the distribution may in act “carry out” either the income or the excess deductions of an estate to you which must be included on your personal income tax return. In addition, as a beneficiary of the estate, you may share in the estate taxes that may be owed to the IRS or NYS. Again, please be mindful of any assets that you are collecting or receiving and consult a tax professional before you make any decisions!

9. What if there is no Last Will and Testament? If there is no Last Will and Testament, you will commence an administration proceeding and the law will designate who will inherit the estate.

10. What are the costs involved of Probate? There are court filing fees that are determined by the value of the estate, as well as attorney fees to prepare the court filings. Please have the attorney you choose to assist you advise you of these costs prior to their commencing any work on your or the estate’s behalf.

Note: These answers are informational only, based on New York law and are not to be considered legal advice.

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