Probate Lawyer and Estate Administration Attorney – Serving clients in Ithaca, Cortland, Waverly, Binghamton, and the Surrounding Finger Lakes Communities
If you’ve been named to serve as an executor or estate administrator, we know that you may have questions about what must be done, what filings are required, what bills should be paid, and what to do if disputes arise. As Ithaca probate lawyers and estate administration attorneys, we will be there to help you at every step to ensure that all filings are made, and that all of your duties are fulfilled.
What is Probate?
Probate is the legal process through which a decedent’s estate is administered. This process generally consists of gathering assets, making required court and other filings, preparing and filing final tax returns, paying off outstanding debts (including taxes), and distributing any remaining assets in accordance with the decedent’s will (if there is one), or in accordance with state intestate law (if there is not a will).
In New York, two primary sources of law govern the probate process: the Estates, Powers and Trust Law (“EPTL”) and the Surrogate’s Court Procedure Act (“SCPA”). These statutes, along with court decisions, provide the basis for New York probate. We assist clients in complying with these laws.
What is the Difference Between an Executor and an Estate Administrator?
An executor is named in a decedent’s will (with court confirmation), while an administrator is appointed by a court. In both of these situations, the person administering an estate is often referred as a “Personal Representative” (which is the term referred to below), and the basic duties in each situation are essentially the same.
What are the Primary Duties of Personal Representatives?
As a personal representative, your duties will include:
- Taking control and accounting for all assets in the estate. For the estate to be settled, the representative must have control of the assets. Control may include activities such as acquiring keys to houses and automobiles, retrieving borrowed property, or visiting financial institutions to gain access to accounts. All assets must then be inventoried and valued.
- Managing the estate. Administering an estate involves caring for day-to-day activities to make sure assets are safe. If, for example, the estate contains real property, the representative will need to make mortgage and insurance payments and ensure that routine maintenance is performed. A careful accounting must be done for the distribution of all funds relating to the estate – we can help in this regard.
- Paying all debts. Once the estate has been valued, the representative must pay creditors for outstanding valid debts. This process must happen before any property or assets are distributed to the family or loved ones. We can assist should any questions arise as to whether a claim is valid or should be paid.
- Filing tax returns. We can help you retain a qualified tax specialist who can assist with the preparation and filing of the final estate and income tax returns.
- Filing court documents and closing probate. Upon distribution of the estate assets, we prepare and file all documents necessary to close the probate process.
- Distributing any remaining assets to beneficiaries or heirs in accordance with the will (if there is one) or in accordance with intestate law. We can assist in this process to determine who qualifies for a distribution, and to which assets they may be entitled. We can also prepare any associated legal documents, such as deeds that may be necessary to transfer legal title.
If I Serve as a Personal Representative, Will I Be Liable for Estate Debts or Taxes?
No. Your duties will be to ensure that the proper estate debts are paid, the final tax filings are prepared and submitted, and the final tax liabilities are paid. You will not be liable for any tax or debt deficiencies. If there are not sufficient funds in the estate, we can advise you as to how such debts should be paid.
How We Help
As an Ithaca probate law firm, we help personal representatives fulfill their duties by:
- Answering questions about the probate process
- Creating and filing appropriate probate documents
- Identifing estate assets, and advising as to what actions should be taken with respect to preserving assets
- Providing guidance on how to notify estate creditors
- Addressing claims against the estate to determine what claims should be paid and which claims may not be valid
- Providing advice regarding how assets may be divided if your loved one does not have a will
- Suggesting how to distribute sentimental assets or single assets given to multiple individuals (such as a house that left to multiple children)
Acting as a personal representative can be a difficult task; we can help you in running this process smoothly.
How Should a Personal Representative Distribute Estate Assets if There is No Will?
If there is no will, New York intestate law determines who is entitled to inherit. Generally, in these situations, all people who have the same family relationship to the decedent will be entitled to inherit equal shares. Family members who are entitled to a share of the decedent’s estate are referred to as “distributees.”
As the personal representative, you will be tasked with dividing assets and property equally to each of the eligible distributees. Because apportionment of assets is dependent on the distributees’ relationship to the decedent, it is critical to be aware of the following asset distribution hierarchy:
- If the decedent has a spouse (husband or wife) and no children, the spouse inherits everything.
- If the decedent has a child but no spouse, the child inherits everything.
- If the decedent has a spouse and children, the spouse inherits the first $50,000 plus half of the balance. The children inherit everything else.
- If the decedent has parents but no spouse and no children, the parents inherit everything.
- If the decedent has siblings (brothers or sisters) but no spouse, children, or parents, the siblings inherit everything.
- If a child of the decedent dies before the decedent, and that child also had children of their own, then the decedent would have grandchildren. Those grandchildren would inherit the share that the deceased child (their parent) would have received had he or she been alive at the time of the decedent’s death.
What Constitutes Equal Shares?
Intestate law requires that each person get a “equal share”, which is based upon fair market value. Money and financial assets can easily be divided among beneficiaries. Heirlooms, however, may have very little market value, but a great deal of sentimental value.
Thus when an estate is comprised of sentimental items, real property, money, and other assets. it can be challenging to ensure a fair and equal distribution that will be acceptable to all beneficiaries.
In situations such as these, a family settlement agreement can be used to resolve the distribution amicably, rather than fighting over how specific assets should be distributed. We assist personal representatives in these situations.
How Does the Probate Process Work in New York?
If a decedent named an executor in their will, the executor will be tasked with initiating the probate process by petitioning the New York Surrogate’s Court in the county in which the person lived at the time of death. The petition must include a copy of the will and a copy of the death certificate.
The Surrogate’s Court judge will review the will to confirm that it is valid, and that all formalities have been followed. Once the judge is satisfied that the document is valid, an order will be issued admitting the will to probate and authorizing the executor to legally handle the affairs of the estate, including the distribution of all assets.
Unfortunately, admitting a will to probate is not always a seamless process. When a petition is filed with the Surrogate’s Court, all interested parties are notified. This can be problematic, as interested parties can object to the probate or contest the will.
Similarly, if there is no will, an estate administrator (personal representative) will need to be named. We can assist if you desire to act in such as capacity.
Answering Your Questions
Immediately following formal appointment, personal representatives often have a number of practical questions, such as:
- What actions must be taken immediately for the management of the estate (e.g., should mortgage payments continue to be made?)?
- How do I pay debts if the estate does not have liquid assets (i.e., cash or assets that can easily be converted to money)?
- How can I access my deceased loved one’s bank accounts?
- How should estate assets be distributed, if the property is not referenced in the will?
Not only can we help you with questions and issues such as these, but we can advise on how to accomplish your obligations while best protecting you in the event of a will or probate contest by a potential family heir or beneficiary. As New York estate administration and probate lawyers, our role is to guide you through the estate administration process and to help settle matters expeditiously and cost effectively.
Call our Office Today to Schedule a Free Consultation to Learn How We Can Help You!
- Will, Trust, & Estate Planning
- Will Contest & Probate Dispute
- Probate & Estate Administration
- Probate Checklist for Executors and Administrators in New York
 New York Consolidated Laws, Estates, Powers and Trust Law, The New York State Senate, https://www.nysenate.gov/legislation/laws/EPT/A7P1.
 Surrogate’s Court Procedure, The New York State Senate, https://www.nysenate.gov/legislation/laws/SCP.