May 19, 2020

Small Estates & Voluntary Administration



 If a close family member dies leaving less than $50,000.00 in personal property (typically cash, bank accounts or stocks), New York law provides a simplified procedure for collection of this property without the need to formally probate a Last Will and Testament or petition the Court for Letters of Administration. Instead, the person seeking to collect and distribute these funds needs only present an Affidavit of Voluntary Administration to the Court and, provided this person is an appropriate person, the Court will issue Letters of Voluntary Administration to such person. If the deceased person died with a Last Will and Testament, this document must be filed with the Affidavit of Voluntary Administration; if they died without a Last Will and Testament, all that is needed is an Affidavit of Voluntary Administration. The filing fee collected by the Court for this type of proceeding in $1.00, which is typically paid in cash.  In addition to completing and filing the Affidavit of Voluntary Administration, filing the Last Will and Testament of the decedent with the Court, if applicable, and paying the required $1.00 filing fee, an original, certified copy of the decedent’s death certificate must be filed with the Court.

Please note that though a Last Will and Testament has been filed with the Affidavit of Voluntary Administration, and the Court has appointed you as Voluntary Administrator, the Will has not been admitted to probate, and the Court has not passed on the validity of the Will. What this means is that, if property is discovered which causes the total value of all personal property of the decedent to exceed the $50,000.00 threshold, the Voluntary Administrator must now formally petition the Court for probate of the decedent's Last Will and Testament and must defend any contest to the Will as a result of the formal probate petition.

The above having been said, if a person petitions the Court seeking their appointment as Voluntary Administrator in bad faith – either actually making a misrepresentation to the Court, filing a Will of the decedent’s which is known to have been replaced by a later Will or filing a Will which is known to be ineffective – this person is answerable for his/her misdeeds, and the Court will enter a judgment if sought by someone who was harmed by the Voluntary Administrator’s wrongdoing, as well as referring this person to the local District Attorney’s office for prosecution.

After appointment, the Voluntary Administrator must undertake to collect assets of the decedent, pay all creditors of the decedent, and, after waiting 7 months, distribute estate property to either the beneficiaries named in the Last Will and Testament or to the decedent’s “distributees” as provided for in New York's EPTL §4-1.1. 

New York Law provides a specific pecking order as to who can petition to be the Voluntary Administrator. The order as to who can petition when the decedent dies without a Last Will and Testament is as follows: 1) surviving spouse, 2) child or children, 3) grandchildren of predeceased child/children, 4) parent/s, 5) brothers/sisters, 6) nieces/nephews,  and, finally, 7) aunts/uncles. If the decedent died with a Will, then the nominated executor has priority over all others and is the person who should petition for Letters of Voluntary Administration.

Please note that if a family member dies leaving real estate or a cause of action (lawsuit), these assets cannot be administered using the simplified procedures outlined above, but, instead, the decedent’s Last Will and Testament must be probated or a petition must be made to the Court asking for "full" Letters of Administration.

November 21, 2015

Surrogate's Court: Renunciations

There are several reasons a person may want to renounce property they inherit. Perhaps they have no need for the piano their deceased uncle left them. Perhaps they would rather the property go to someone else beside themselves. Perhaps they are a high income individual and have no need for additional income or property. Whatever the reason may be for renouncing property, the rules regarding properly/legally renouncing such property are very complex. As such, the information provided below is only intended as a very basic outline of some of the rules, under New York law, on renouncing inherited property.

Under New York law, nearly any inherited property can be renounced if the renouncing party does not want the property intended as an inheritance. In considering whether to renounce or not, it's important to note that a person can renounce all, a portion of or specific items inherited - a renunciation need not be an "all or nothing" decision. In order for the renunciation to be valid under New York law, the following must be done:

     1) The renunciation must be in writing, which writing must be signed, properly acknowledged and filed with the Clerk of the Surrogate's Court having jurisdiction over the deceased person's estate within 9 months of the "effective date of the disposition" (which is typically the deceased person's date of death);

     2) The written renunciation must be accompanied by affidavit of the person renouncing that states that the person renouncing did not receive payment for filing their renunciation; and

     3) A notice of renunciation, which shall include a copy of the renunciation, must be personally served on the Executor or Administrator of the deceased person's estate and a copy of the notice of renunciation, together with a copy of the renunciation itself, shall be served via first class mail upon all people who may receive the renounced property.

A person who renounces an inheritance is treated as if he or she predeceased the decedent, and this treatment of the renouncing party as having predeceased will direct to whom the inheritance is to pass. Note that a party may not accept property and later renounce it - the act of accepting the property makes it so the property is renunciation proof. Also note that once a renunciation is filed, the renunciation is irrevocable - once done, a renunciation cannot be undone.

November 9, 2015

Surrogate's Court: Temporary Administration

Whenever there is an issue which may cause delay in the Surrogate's Court appointing an Administrator or Executor for a deceased person's estate, the Surrogate's Court has the authority to appoint a Temporary Administrator until the issue may be resolved and an Administrator or Executor appointed.

Generally speaking, a Temporary Administrator has all the powers of an Administrator or Executor, except that the Temporary Administrator may not use property belonging to the estate under his or her control to pay or satisfy gifts made under the deceased person's Last Will and Testament and/or to make payments to the deceased person's other family members, called distributees, if such deceased person did not have a Last Will and Testament.

November 4, 2015

Surrogate's Court: Eligibility Requirements for Executors/Administrators


In order to be eligible to serve as the Executor or Administrator of a deceased person's estate, you must meet the following requirements:

     1) be at least 18 years old; and

     2) be mentally competent; and

     3) generally speaking, a citizen of the United States; and

     4) not have been convicted of a felony; and

     5) not be a drug addict, drunkard, dishonest persons and/or imprudent; and

     6) not found by the Court to be ineligible for any other reason.




October 29, 2015

Surrogate's Court: Trial by Jury


As in all courts in the State of New York, if a trial by jury is desired in the Surrogate's Court, a trial by jury must be demanded. In each case initiated in the Surrogate's Court, a jury demand must be made by the Respondent in the Respondent's answer or objections to the Petitioner's petition.  If the Petitioner wants the matter tried before a jury, the Petitioner must demand a trial by jury within 6 days after he or she is served with the Respondent's answer or objections.

If a demand for a trial by jury is not made as outlined above, the case will either be tried by the Surrogate himself/herself or by a referee appointed by the Surrogate's Court to hear the matter.

Surrogate's Court: "Appearing" in the Surrogate's Court


A legal "appearance" is an act by which a party to a Surrogate's Court proceeding, either directly or indirectly, consents to the jurisdiction of the Surrogate's Court and typically makes the Surrogate's Court aware of his or her position with respect the proceeding - either that he or she consents to the relief sought by the Petitioner or that he or she wishes to contest such relief sought. While physically appearing at the Surrogate's Court when your case is called will usually count as a legal appearance, if you are looking for directions to any of the Surrogate's Courts in New York, please visit http://www.nycourts.gov/courts/index.shtml.

Generally speaking, there are 4 ways a person appears in a Surrogate's Court proceeding:

     1) By filing a pleading with the Surrogate's Court which sets forth such person's position with respect to the proceeding; or
     2) By signing and filing a Waiver with the Surrogate's Court, which Waiver will usually state that the person filing such Waiver does not wish to contest the proceeding; or
     3) By filing a Notice of Appearance, which typically does not set forth such person's position with respect to the proceeding; or
     4) By physically appearing at the Surrogate's Court when your case is called and by verbally noting your appearance in the Surrogate's Court record.


Note that if a person is a child or a disabled individual, such person appears in the Surrogate's Court through his or her guardian and the Court has the authority to, and typically does, appoint a local attorney, called a Guardian Ad Litem, to protect such child or disabled person's interests in the proceeding.


August 6, 2015

Surrogate's Court: What Assets Can Creditors Reach?

Before attempting to answer the question: in a Surrogate's Court proceeding, what assets can a creditor reach, it's crucial to understand that, in all Surrogate's Court proceedings, there are two (2) categories of assets: Probate Assets and Non-Probate Assets.

Probate Assets:  In a nut shell, Probate Assets are any assets the deceased person owned at the time of death which are titled solely in the deceased person's name. By way of example, if a deceased person had two (2) bank accounts, one with Bank X, which is a joint checking account with the deceased person's name on it and his son's name, and one with Bank Y, which is a checking account in the deceased person's name alone, only the account with Bank Y will be a Probate Asset.

Non-Probate Assets: In a nut shell, Non-Probate assets are assets the deceased person owned at the time of death which were joint with another person or which have a beneficiary designated on the account. In the example above, the account with Bank X is a Non-Probate asset, because it's a joint bank account. The same is true for "In Trust for," or ITF, accounts.

Note that all of a deceased person's assets, be they bank accounts, brokerage accounts, IRA accounts, life insurance policies, pension accounts, etc. will either fall into the category of Probate Assets or Non-Probate Assets.

So, to get back to the question: in a Surrogate's Court proceeding, what assets can a creditor reach, the first answer to this question is all Probate Assets, subject to certain set-offs for surviving spouses. Probate Assets, no matter what type of assets they may be, are fully reachable by creditors, even if this means that a creditor will end up taking 100% of the deceased person's estate.

So are Non-Probate assets protected from creditors? Well, the answer to this question is, it depends on the type of Non-Probate asset. Without getting into too much detail, the following Non-Probate assets tend to be protected from the claims of creditors:
 
    1) Life insurance policies;
    2) Pension benefits;
    3) IRA accounts; and
    4) Irrevocable trust assets.

While the following Non-Probate assets tend to be subject to the claims of creditors:

    1) ITF accounts;
    2) Revocable trust assets;
    3) Joint accounts; and
    4) POD accounts.