Probate / Estate Administration
Probate, Estate Administration and Will Contests
When a person dies, their estate must be administered by their executor, administrator or trustee. The process can be complex and confusing, especially since it comes on the heels of all the emotional difficulties of a loved one passing.
If you have a loved one who passed away, we can guide your family through the process of probate and estate administration.
Qualifying as Executor / Administrator
Before any property can be transferred, the estate must have a personal representative appointed. If the decedent (person who died) left a will, then the person named as executor can submit the will for probate with the Surrogate’s Court in the county where the person resided, then apply to be appointed as executor.
If the decedent died without a will or the executor can’t or won’t serve, then an administrator must be appointed. The decedent’s spouse, heirs or other interested parties can apply with the Surrogate’s Court to be administrator.
Be it an executor or administrator, the estate representative must provide notice to the person’s heirs, obtain an EIN for the estate, and may have to prepare an accounting or post bond with the Surrogate. We can assist you with all of these matters.
Tax Returns and Tax Waivers
If the decedent left significant assets, or left property to certain people, then the estate may be subject to estate and inheritance taxes. Regardless of whether tax is actually owed, a return may need to be filed, or tax waivers requested before estate property can be transferred. We can help you understand the estate’s obligations, prepare and file federal and state tax returns, request tax waivers, and take appropriate steps to transfer assets and minimize tax liabilities.
Once the will is probated, the executor should establish an estate account from which claims against the estate will be paid. The executor should also transfer ownership of assets from the decedent to the estate (although you may need tax waivers first). It may be advantageous to handle certain assets like IRA’s, 401(k)’s and investments differently than cash assets, and we can advise you on that. For real property (a house or land), a deed must be executed by the estate.
It is usually best to wait until 9 months after the decedent’s death before distributing assets from the estate to the beneficiaries (the people who inherit property). If distribution is made before 9 months, creditors who have a claim against the estate can bring the claim against the executor personally. Before distributing property, the executor should obtain a release and refunding bond from each beneficiary. With these documents, the beneficiaries release the executor from liability and agree to repay the estate if it later turns out distributions were made improperly. The beneficiaries have a right to demand an accounting from the executor, but in many cases the beneficiaries waive this right since an accounting is expensive (and is paid for by the estate).
The executor has a right to take a fee, although many don’t. The fee must be calculated using a statutory formula.
We can assist you with all of the above.
Will Contests and Estate Litigation
Estate administration often involves a lot of money and emotion, and there is great potential for disagreements to arise. When disagreements can’t be resolved amicably, there may be a lawsuit.
A family member may feel that a will was made improperly, under suspicious circumstances where the testator didn’t actually have capacity to make a will or felt compelled to change his will. The family member may feel the testator was unduly influenced by someone to leave his assets in a certain way. In these cases the family member can bring a will contest and challenge the validity of a will, arguing to a court that it should not be honored.
If a creditor thinks the decedent owes money to her, and the executor refuses to pay, the creditor can bring a claim against the estate. Or if a beneficiary thinks the executor is distributing assets contrary to the will, she can bring a claim against the executor. A spouse can bring an elective share claim if she feels she is being short-changed.
We have advised clients on both sides of these disputes, and if you have an issue involving estate or trust litigation, FriedmanLaw is here to help. Call us for information on your situation.