All human beings that live will eventually die. When a loved one passes, dealing with his or her estate is not a task most people look forward to. However, most people will, during the course of their lifetime, be involved with estate issues concerning a loved one.
When the grief passes, the issues involved are who are the heirs of the estate, what are the assets, how are they distributed, and what creditors need to be paid, become issues in the decedent’s estate. If the individual dies with a Will, the process to validate the Will by the Court is called PROBATE. If an individual dies without a Will, the process of determining who will inherit from his or her estate is called ADMINISTRATION. If there is a Will, the Will will appoint an executor. It will be the executor’s responsibility to hire an estates lawyer and to take the appropriate legal action regarding the estate. If there is no Will, an individual who is next of kin to the decedent can ask to be appointed the administrator of the decedent’s estate.
Legal Work in the Estate
If you hire an attorney, he or she will draft a probate petition or a petition for the administration of the estate. The petition will thereafter be filed in the Surrogate’s Court in the County in which the decedent was a resident of at the time of his or her death.
After the probate petition or administration petition is filed, next of kin and potential beneficiaries will be notified of a court date. On that court date, any individual seeking to challenge either the appointment of the administrator in an administration proceeding, or the executor in a Will in a probate proceeding can appear in Court and advise the judge that he or she seeks to challenge the estate proceeding.
Executor’s and Administrator’s Duties
When the Will is accepted for probate, the executor or administrator’s duties are to find the assets, liquidate them, and obtain them for the benefit of the beneficiaries. The technical aspects of handling the funds is usually dealt with by the attorney retained by the administrator or executor of the estate. Assets of an estate can involve houses, money, stocks and bonds, insurance policies, jewelry, artwork, clothing and other personal items.
Real Estate Issues in Estates
If an individual owns real property outside of New York State (houses, land and other structures on land), an ancillary probate proceeding will be required to be undertaken in the State where the real estate is located. Surrogate’s Courts in the State of New York only have jurisdiction over real property that lies within New York State.
Accounting of Assets Before Distribution to Beneficiaries
After all of the assets are amassed by the estate, and all of the creditors are paid, the administrator or executor thereafter needs to provide a simple accounting to the beneficiaries showing assets, liabilities and the amount which will be available to be distributed to the beneficiaries.
Fiduciary Responsibility
It should be noted an executor is a fiduciary. In the event he or she makes mistakes or mishandles funds, they are personally liable to the beneficiaries of the estate for these actions. It is therefore almost always advisable for the executor or administrator to hire an experienced estates attorney to assist him or her with regard to all aspects of the decedent’s estate.
