Probate And Administration FAQ

Answers To Common Questions About Estate Matters

Can our family avoid probate? Should this be a goal of estate planning?

Many people find ways to transfer assets to the next generation while avoiding or minimizing the need for probate. This may be accomplished through legal avenues such as trusts and family corporations. However, a pour-over will is recommended to account for any assets not titled to a trust.

How can an executor prevent probate litigation?

Serving as an executor or personal representative is considered by many to be an honor when settling an estate for a special family member or friend. However, there is always the potential for legal trouble from a creditor, an adjacent property owner or an estranged family member. To prevent this scenario, consult with a lawyer before taking any actions involving the deceased person’s property. Ideally, an estate will contain enough assets to compensate the executor for his or her related expenses, including legal expenses.

What are the typical steps in the probate process?

Here are some basic steps in a nutshell. For detailed explanations relevant to your case, consult with an attorney.

  • If there is a will, the executor or personal representative will file a death certificate, the will and other pertinent documents with the Surrogate’s Court. After the court determines jurisdiction and other essential aspects, the court will grant probate and issue letters testamentary to the executor. That person will then need to inventory assets, get them appraised, communicate with creditors and prepare to distribute remaining assets according to the will.
  • If there is no will, the death is “intestate.” In that case, an appropriate person (such as a spouse) will petition the Surrogate’s Court to be appointed as the executor. Then the steps above will follow. Assets will be distributed according to state law to the appropriate people.

What is the most fail-safe way to lawfully serve as a trustee for an estate’s trust(s)?

Ideally, the trustee should know about the trust and agree to be the trustee in advance. This is fundamental. Then when the time comes to administer the trust, there is simply no substitute for qualified legal counsel as a guide and protector. Without an attorney’s help, you may make a mistake that will expose you to costly lawsuits.

What if a family member who has a will from another state dies in New York?

The probate process in New York will apply. Any discrepancies between the two states’ formal requirements for validating wills may need a lawyer’s attention to ensure that the estate administration will go smoothly.

When should an estate plan be reviewed and updated?

Every few years and after any major life event such as a marriage, birth of the first child, divorce, marriage of children, start-up of a business and so on, you should ask an estate law attorney to review and update your will and other testamentary documents.

How can I get personalized answers to my specific questions about probate or estates in general?

Contact Andrew A. Bokser at 718-834-1904 or complete our online inquiry form to request a consultation.