Trust & Estate Administration

---

If you are here to learn about New York State probate  or trust and estate administration after the passing of a loved one, we first want to say that we are very sorry for your loss.  We hope that the information you find on this page will simplify any legal and administrative headaches you might otherwise face during such a difficult time.

When a loved one dies it can be a confusing time in which you are in immense grief while also needing to make sure you handle all the technical details of locating assets, paying bills and making sure your loved one’s assets get to the right people, without conflict. We are here to help.

Whether your loved one created a trust to hold their assets, or did not, he or she did have assets (called the estate of the deceased) that must be handled with careful attention and it’s critical that you work with a Personal Family Lawyer® who can help you to do the right thing, minimize conflict and ensure the smoothest possible transition of assets.

If there is not a trust or if not all assets have been properly titled in the name of a trust that was created, we can help your family through the process of estate administration, which usually requires the court process called probate. If you are a beneficiary of an estate, or an executor or trustee, contact us for support in handling the transition of your loved one’s assets as easily as possible.

Probate (or “Administration” if there is no Will) in New York is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries.  Probate in the County where your loved one last resided is also necessary to:

● Prove the validity of the will

● Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one)

● Inventory and appraise the estate property

● Pay any debts or taxes (including estate taxes)

● Distribute the property as direct by the will—or by the New York state intestacy law if there is no will

In New York State, if someone has $50,000 in total assets, or real property owned in their own name, they will probably have to have their assets probated. 

Many residents in New York have heard that probate is bad news.  It tends to be very expensive, it’s time-consuming, and it’s also a public process.

The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.

Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Executor starts the process by filing the original will and a Petition with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition.

 If the decedent had a will, the person named in the will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the administrator of the Estate.

New York law provides that the Executor gets paid according to a compensation schedule, based on a percentage of the assets of the probate estate.

 Being an Executor is a big responsibility. New York’s probate code contains pages upon pages of complex legal rules and procedures that an Executor must follow during the probate. Also, there are certain deadlines that an Executor must meet in filing papers with the Court. If an Executor violates any of these rules, they can be held personally liable for losses to the estate.

In most cases, no.  If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.

Unfortunately, many people who have a Trust think they have it all taken care of.  But time and again, family members of a recently passed loved one come into my office and they find out they are facing the frustration, expense and delay of a probate, even though the person they loved had a trust.

Why is that?

Often the Trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of their Trust.  That is why it is so very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so the planning you do now works as planned later.

It’s why we do things so much differently than most other lawyers and law firms, here at Bowers & del Peral, PLLC.

 Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate owned with a spouse or titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process.  Talk to an attorney if you have questions about your specific situation.

If there is no will or trust, the estate will be distributed according to New York’s probate and intestate laws, which state that a person’s estate will be distributed in the following order: 1. Spouse 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents).

The length of time of a probate will depend on several factors. It usually takes a minimum of 7 months from when the Letters of Administration or Executorship are issued and can take up to two years or even longer for complex cases. 

The Personal Representative (i.e. Executor or Administrator) is entitled to the statutory fee for their services as well as additional amounts for managing assets like rental real estate. The statutory fees are determined based on the size of the probate estate as follows: 

● 5% of the first $100,000

● 4% of the next $200,000

● 3% of the next $700,000

● 2.5% of the next $4,000,000

● 2% for all amounts above $5,000,000.

There are also court costs and filing fees, document certification and recording fees, legal fees, accountant fees, appraisal fees and broker and management fees if assets are being sold or managed.