August 26

Do I have to call the attorney who drafted the decedent’s will in order to probate the will?

This is a great question I have happily answered in the past because many people are under the impression that they must call the attorney who drafted their deceased parent’s will in order to effectuate the probate process. The quick answer: no you do not have to call that attorney.

Getting that out of the way I thought it would be best to explore the pluses or minuses of this specific issue:

Potential negatives:

– You may not be a good fit with your deceased loved one’s attorney. Probate is a long process and as I tell my clients, we will have a real working relationship by the end of it.

– The drafting attorney may have a fee structure that you do not like. Not every attorney is open to a contingent fee arrangement and many probate attorneys mandate that their hourly fee for every phonecall, email, or correspondence be paid on a monthly basis. If you are not in a position to pay this hourly fee, this may not be a good fit as well.

Pontential positives:

– If the deceased had a very good relationship with his attorney, then the drafting attorney may have a real working knowledge of the estate assets and possibly may have a written list- something that can really help with the process. My experience is that most people use different attorneys for different things these days and that these neighborhood lawyers are disappearing more frequently. I like the idea of neighborhood lawyers myself and attempt to bring some of that charm into my practice, but the reality is that the big law culture that persists usually will eliminate this possibility.

At the end of the day, the attorney that represents you in a probate or administration proceeding is your attorney. Keep that in mind when you have to make that decision.

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December 4

“I received a NY Notice of Probate in the mail. What is this?”

Once every other week I receive a phone call from a concerned party about receiving a Notice of Probate in the mail. We all know the real question that sparks this phonecall, but I’ve broken it down into five parts for added suspense.

I. What is a Notice of Probate?

Notice of Probate is explained in Surrogate’s Court Procedure Act (SCPA) § 1409. (1) Essentially it is a statutory formality that puts certain classes of people on notice that the decedent has died and that your name is listed somewhere in the will.

So, the question you really called for? Yes. You are named in the will if you receive a notice of probate. Does that mean what you want it to mean? Eh, please read “named” as literally as possible.

II. What do the terms that appear on the notice of probate actually mean? Legatee, devisee, trustee, guardian, executor, testator and successor terms defined. (2)

For the truly inquisitive I’ve placed some working definition of these terms in the footnotes. Most of them are archaic words that the law has never been able to let go of, and probably never will. I like to sum it up as simply as possible: legatees and devisees get stuff and trustees/guardians/executors do stuff. Don’t worry, the law doesn’t expect the doers to work for free though. They are eligible for compensation also. See SCPA §§ 2307, 2308, 2309.

Please note that on the Notice of Probate it will state what title you have, so you can begin to formulate a hypothesis for the most important question.

III. Am I going to receive money?

And here is the let down: it depends.

First off, is the estate solvent? Are there debts and liabilities that essentially negate the estate? If the debts plus the costs of administration are greater than the estate’s assets then no, you are not going to receive any money.

Secondly, what are you named in the will? There is no requirement that the will be sent along with a Notice of Probate, therefore you will probably be in the dark as to what the will states. It is impossible to know if you are receiving money without a copy of the will. I can play the “if this then that” game with you for 15 minutes, but we still won’t know for sure . You could be named solely as a successor executor. If that is the case you are probably not going to see any money. This leads up to our next question.

IV. Can I see a copy of the will?

Yes. A will is a public document that is accessible and it is possible to obtain a copy.

V. What do I do next?

Again this is another one of those questions where it just plainly depends. For example, if you are a specific legatee, you may just have to wait for Letters Testamentary to be issued to the executor and your bequest to be distributed. Feel free to contact me with any other questions.

Anthony Nigro is a Surrogate’s Court practitioner that primarily works out of the following counties: Westchester, Bronx, New York, Kings, Queens, Rockland, Orange, and Dutchess. Appointments can be set up by telephone, email or through his “Contact” page.

(1) “Before letters are issued there shall be filed in the court a notice…that the will has been offered for probate or probated, as the case may be. The notice…shall state whether such person is named or referred in the will as legatee, devisee, trustee, guardian or substitute or successor executor, trustee or guardian…”

(2) legatee: any person designated to receive a transfer by will of personal property (SCPA § 103.33).

devisee: any person to whom real property is transferred by will. (SCPA § 103.13).

trustee: the person appointed, or required by law, to execute a trust (Blacks Law Dictionary).

guardian: A guardian is a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status, or defect of age, understanding, or self-control, is considered incapable of administering his own affairs. (Blacks Law Dictionary).

testator: One who makes or has made a testament or will; one who dies leaving a will. (Blacks Law Dictionary).

executor: A person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease (Blacks Law Dictionary).

successors: are those named in a will that will take the place of the initial parties named due to incapacity or death.

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June 24

Small Administration in New York

Probate or Estate Administration in New York is a sometimes necessary, sometimes unnecessary, costly affair. There is an exception though.

In New York this is known as the small estate administration. This is a simplified court procedure for the estate of a person who died, but who did not have many assets. The court, and more specifically, the Surrogate’s court, gives away the property of the decedent (the person who died) to the person or people who had a legal right to inherit. Please take note that if the decedent owned real property soley in his or her own name, the estate may not take advantage of this program. If the decedent owned real property jointly and you don’t plan on selling it, you may take advantage of the program as long the estate is under either $20,000 or $30,000.

To qualify for the program, the decedent must have had $20,000 or less in personal property if they passed away between August 29, 1996 and December 31, 2008 or $30,000 or less in personal property if they passed away after January 1, 2009.

The next step is to file a form known as the “Affidavit of Voluntary Administration,” also known as the “small estate affidavit.” Luckily for you, this is now done online.
Before you begin, you will need to gather:

1) The name and address of the person who died (also called “the decedent”)

2) A certified copy of the death certificate

3) The name and address of the decedent’s husband or wife, children, and grandchildren.
If the decedent did not have a husband or wife, children or grandchildren, the name and address of the decedent’s father and mother.
If the decedent’s parents are no longer living, the name and address of the decedent’s siblings.
If the decedent’s siblings are no longer living, then the name and address of the siblings’ children.
If none of the above family members of the decedent are living, then the name and address of any aunt or uncle of the decedent.

4) The original Will, if the decedent had a Will, and the names and addresses of people mentioned in the Will.

5) If the decedent had assets, the value of each asset. You will need account numbers and serial numbers of assets. Assets may include the following: bank accounts (not joint accounts), investment accounts, insurance policies, and cars and boats

6) The decedent’s unpaid creditors. This may include the following: credit card bills, utility bills, and funeral expenses

Click this link to get to work: https://lawhelpinteractive.org/login_form?template_id=template.2009-05-14.8486845559&set_language=en

Of course if you need help with this process, have any questions, or do not qualify for the exception, call or email me and we’ll get through the probate process together.

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