Q: What is a Will and why do I need one?

A: A will is a written declaration of a person's wishes as to the disposition of his or her property to take effect after his or her death. It is important to have a Will to guarantee your assets are distributed according to your wishes.

A Will also names an executor, who is the individual responsible for carrying out the terms of your Will. If you have minor children, your Will can designate guardians for those children in the event both you and your spouse die. (Back to Top)

Q: What is "Probate"?

A: Probate is the legal term for the process in which a Will is proven to the satisfaction of the Surrogate's Court to be the valid Last Will and Testament of the decedent and the person named in the Will as executor is appointed. During the probate process, the formal appointment of any trustees or guardians named in the will can also be accomplished. (Back to Top)

Q: What do I need to consider when formulating my Will and Estate plan?

A: Proper planning in the drafting of your Will and Estate plan ensures that your wishes are followed after your death. There are several factors which you should give consideration to, including:

a) Choice of an Executor (s) and Successor Executor;
b) Choice of guardian for underage children;
c) Whom you want to receive your property;
d) Naming of charitable organization (s) as a beneficiary (ies)
e) Bequests of specific items of personal property or specific cash bequests to individuals or Organizations; and
f) Inclusion of trust language for the benefit of minor beneficiaries or those with special needs.

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Q: When can a will be challenged?

Generally speaking, it is quite difficult to successfully challenge a decedent’s Will which has been offered for probate. There are several legal grounds for contesting the probate of a Will, which include:

a) Defective Execution- the formalities and requirements of the Will signing “ceremony” were not adhered to;
b) Valid Revocation- the will being offered for Probate was validly revoked by the “testator”, i.e., the person who made the Will;
c) Lack of Testamentary Capacity- the testator was not of sound mind when the Will was executed;
d) Undue Influence- the testator was coerced by another person to draft a Will according to that person’s wishes;
e) Fraud- the Will being offered for Probate resulted from a purposeful misrepresentation to the Testator; and
f) Mistake- signing of the wrong Will, mistaken omission or inclusion of a provision, etc. A person who wishes to challenge a Will must have a legal standing to object to the probate of the Will, meaning that they must have an economic interest which is adversely affected by the Will being offered for Probate. (Back to Top)

Q: Can I prepare my own Will?

A: It is important to have your Last Will and Testament drawn by an attorney to ensure that your intentions are properly stated and to ensure that your Will is formally valid and admissible to probate. There are also strict requirements which must be followed in the execution (signing) and witnessing of the Will. (Back to Top)

Q: What happens if I die without a Will?

A: A person who dies leaving a Will is said to die "testate" and a person who dies without leaving a Will is said to die "intestate". If you die without a Will, an "administrator" is appointed by the court (who performs the same duties as an executor), and your estate is distributed to your heirs as specified under New York State Law. For example, if you die leaving a surviving spouse and children, your surviving spouse would receive $50,000 plus one-half of the balance of the estate. The other one-half would be distributed equally to your children.

This distribution pursuant to the New York State Law applies only to the assets owned individually by the decedent or payable to the estate as beneficiary. It does not apply to assets which pass immediately upon the decedent’s death, such as assets with a named beneficiary other than the estate, assets held jointly between the decedent and another individual as joint tenants, and assets with “payable upon death” provisions. (Back to Top)

Q: I am named as the Executor in someone’s will who has died. When can I start performing my duties?

A: A person named or nominated in a will as Executor has no legal authority to act as Executor until he or she has been officially appointed as such by the Surrogates Court having jurisdiction over the decedent’s estate. This appointment by the Court gives the Executor full authority to administer the probate assets in the decedent’s estate. (Back to Top)

Q: Is it always necessary to probate a person’s will once the person dies?

A: No. The main purpose of probating a decedent’s will is to allow for the legal transfer of the probate assets to the beneficiaries named in the will. The probate assets consist of any assets owned individually by the decedent, in addition to any assets owned by the decedent naming his or her estate as the beneficiary. Other assets, such as assets with a named beneficiary other than the estate assets held jointly between the decedent and another individual as joint tenants, and assets with “payable upon death” provisions are non-probate assets. These non-probate assets pass immediately upon the person’s death by operation of law. If all of the assets owned by the decedent at the time of death are non-probate assets, it is not necessary to probate that person’s will. (Back to Top)

Q: What are the duties of an Executor or Administrator?

A: The primary duties of both an executor and administrator, once formally appointed by the Surrogate's Court, are to collect and liquidate the estate assets, pay all of the legitimate expenses and debts of the estate and distribute the remaining assets to the beneficiaries according to the decedent's Will, or to the heirs entitled to inherit if there is no will. (Back to Top)

Q: What are my obligations and liabilities as an Executor or an Administrator?

A: A court-appointed Executor acts as a “fiduciary” of the Estate, and has a fiduciary relationship to the estate beneficiaries. Likewise, a court-appointed Administrator (if the decedent dies without a will) has those same fiduciary obligations.

The Executor or Administrator has a duty to utilize his or her best judgement and efforts in acting on behalf of the Estate beneficiaries. If the fiduciary violates this duty, resulting in a loss of estate assets, he or she could be held personally liable. (Back to Top)

Q: What assets of the decedent do I have control over as an executor or administrator?

A: Assets owned by the decedent can be characterized as either "probate" assets or "non-probate" assets. Generally speaking, probate assets are those assets owned individually by the decedent and titled to the decedent alone, and assets specifically designating the estate as beneficiary.

Probate assets become part of the decedent's estate and are distributed by the executor to the beneficiaries named in the Will, or by the administrator to the decedent's heirs at law.

Non-probate assets include certain assets that pass by operation of law immediately upon the decedent's death, such as assets held jointly between the decedent and another individual with right of survivorship and Totten Trust accounts held in trust by the decedent for a named beneficiary. Other non-probate assets include those that pass to a named beneficiary other than the estate, such as life insurance policies, retirement benefits and United States Savings Bonds payable upon death. An executor or administrator has no control over the non-probate assets. (Back to Top)

Q: Am I entitled to collect any fees if I serve as an executor or administrator?

A: Both executors and administrators are entitled to collect commissions for serving as the personal representative of the estate. The commissions are set forth by statute and are based upon the size of the probate assets in the estate as follows:

5% of the first $100,000 in assets;
4% of the amount between $100,000 and $200,000;
3% of the amount between $200,000 and $700,000;
2 1/2% of the amount between $700,000 and $4 million;
2% for amounts above $5 million.

For example, if the size of the estate is $140,000, the commissions would be $6,600 computed as follows:

.05 x $100,000 = $ 5,000.00
.04 x $ 40,000 = 1,600.00
_____________$ 6,600.00

It is important to note that all personal representatives must include in their gross income all commissions paid to them from an estate.

Those commissions, however, can be claimed as a deduction on either the Estate tax return for the Estate, or on the fiduciary income tax return for the Estate. (Back to Top)

Q: Do I need to pay personal income taxes on my inheritance from an estate?

A: Generally speaking, property received as a gift, bequest or inheritance is not included in your income for tax purposes. However, if property you receive in that manner later produces income, such as interest, dividends, rental, etc., that income is taxable to you.

In addition. There may be taxable consequences relating to amounts you inherit from retirement accounts Owned by the decedent, such as Individual Retirement Accounts (IRA’s) and Annuities. Consequently, if you are a beneficiary of such an account, it is prudent to consult with your tax or financial advisor to discuss your distribution options.

With such retirement accounts, any amounts which are withdrawn (distributed) are subject to ordinary income tax. As a beneficiary on the account, it is possible to take only the minimum distributions required by law and therefore maximize the income-tax deferred growth of the funds. (Back to Top)

Q: What are the income tax consequences of any capital assets (real estate, shares of stock, etc) which I inherit from an estate?

A: Property received by inheritance currently receives a “stepped-up” basis to its date of death value. Therefore, if that property is subsequently sold by you, any capital gain (or loss) to be reported on your personal income tax return is calculated as the difference between the sale price and the date of death value. The appreciation in value of that capital asset which occurred during the decedent’s ownership of the asset avoids capital gains taxation. (Back to Top)

Q: Are there any taxes which must be paid by an estate?

A: It is the executor's or administrator's duty to file the following tax returns on behalf of the decedent and/or the estate:

1. Final personal income tax returns for the decedent: The personal representative must file the appropriate final income tax returns for the decedent for the year of death and any returns not filed for preceding years. If the decedent left a surviving spouse, the fiduciary (executor or administrator) and the surviving spouse can generally file a joint return for the decedent and the surviving spouse.

2. Federal and State Fiduciary Income Tax Returns for the estate: Generally speaking, any income generated on a decedent's assets (such as interest, dividends, rentals, capital gains and losses) after the date of death is required to be reported on a federal and state fiduciary income tax return for the estate. When an individual dies, their estate becomes a separate entity for taxation purposes. It exists until the final distribution of its assets to the beneficiary.

The fiduciary income tax returns are required to be filed when the estate generates $600 or more of gross income during a tax year. On the returns, the estate is allowed an annual exemption deduction of $600 in figuring its taxable income. In addition, the expenses of administering an estate, such as attorney fees and fiduciary commissions, can be deducted on the return.

3. Federal (United States) and State Estate Tax Returns: It is necessary to file a Federal estate tax return for the estate of every U.S. citizen or resident whose "gross estate" plus adjusted taxable gifts made during the decedent's lifetime, is more than $3.5 million (for deaths in 2009).

Each state has its own Estate Tax law. Currently, for New York State residents dying in 2010, it is necessary to file a New York State estate tax return if the total “gross estate” plus adjusted taxable gifts made during the decedent’s lifetime, exceeds $1,000,000.

The gross estate of a decedent include both the probate assets owned individually by the decedent, in addition to the non-probate assets, such as assets owned jointly by the decedent and another individual, assets payable to a named beneficiary, etc. Also included are any gifts or transfers made during the decedent's lifetime for which a gift tax return was required to be filed. Currently, an individual can gift or transfer up to $13,000 each to any number of individuals per taxable year without any gift tax consequences. (Back to Top)

Q: How long is the probate/administration process?

A: Once the executor or administrator has been formally appointed by the court, the estate must remain open in Surrogate's Court for a period of at least seven months from the date of appointment. Those seven months give any creditors of the decedent the right to file claims against the estate for that period of time.

If the personal representative were to close the estate or distribute any estate assets to the beneficiaries before that period of time expires, the personal representative could be held personally obligated for any legitimate debts of the estate or the decedent.

Once the seven months have expired, the personal representative must prepare an accounting of his/her receipts and disbursements and the proposed distribution to the beneficiaries. The accounting can be accomplished through either a formal judicial settlement with Surrogate's Court involvement, or an informal agreement between the executor/administrator and the beneficiaries. The informal agreement is generally used where all parties are competent adults who can sign a binding release, particularly if they are all relatives and there is no dispute.

It is very common for an estate to remain open well past those seven months for various reasons, including: Asbestos or wrongful death litigation on behalf of the decedent’s estate, unmarketable property in the estate, and contested accounting proceedings. (Back to Top)

Q: What type of court costs are involved for a probate or administration proceeding?

A: The Surrogate's Court charges a filing fee when an estate is initially opened, which is based upon the total value of the probate assets in the estate. Those filing fees range from $45.00 for an estate in which there is less than $10,000 in probate assets, to $1,250.00 for an estate in which the assets total $500,000 or more.

There are also miscellaneous filing fees charged by the court if there are additional proceedings necessary during the course of the estate, such as the appointment of a trustee named in a decedent's will, etc. (Back to Top)

Q: What if an individual dies and owns only minimal assets in his/her name?

A: There is a simplified procedure known as a "Small Estate Proceeding" or "Voluntary Administration" which may be available when the decedent dies leaving personal property (not real estate), such as bank accounts, vehicles, shares of stock, etc. having a total value of $30,000 or less.

The person appointed to administer a small estate is referred to as a "voluntary administrator" and is usually the executor named in the decedent's Will, or the decedent's surviving spouse or child, if there is no Will.Unlike an executor or administrator, the voluntary administrator does not have unlimited control over the decedent's estate, but only limited authority to liquidate the specified assets, pay any expenses and distribute the remaining funds according to the decedent's Will or to the decedent's heirs. A voluntary administrator is not entitled to collect commissions. (Back to Top)

Q: What is a Trust?

A: In general, a trust is a legal instrument by which an individual gives control over his or her assets to another (the "trustee") to disburse according to the instructions of the individual creating the trust (the "settlor"). The individual creating the trust designates the beneficiaries, the trustee(s), the purposes for the trust, and provides the funding for the trust.

The trustee is the legal owner of the trust assets. Trustees can be individuals or corporate. The trustee is subject to a high duty of care and responsibility, and must act for the benefit of the trust rather than his or her own personal interests. The trustee is responsible for the proper and prudent investment of the assets of the trust.

The "beneficiary" of the trust is the person or entity for whose benefit the assets are held.

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Q: What types of trusts are there?

A: There are a number of different types of trusts, some of which are the following:

1. "Intervivos" trusts : These are trusts which you create during your lifetime. The trust can terminate on your death or during your lifetime. A trust which you create during your lifetime can "pour over" into another trust in your Will so that it continues even after your death.

An intervivos trust can be either "revokable", meaning that the creator can revoke and stop it, or "irrevocable", meaning that the creator cannot terminate it; it goes on without control by the creator once it has been made.

If the intervivos trust is irrevocable it can save you estate taxes. An intervivos trust can also save on income taxes, because they will be paid either at the trusts' rate or at the beneficiaries' rate.

2. "Testamentary" trusts : These are trusts created in your Will and come into effect only upon your death. They are contained in your Last Will and Testament, and can be changed or eliminated if you decide to change your Will. The property in the trust remains yours during your lifetime. However, the trust property is taxed (for estate tax purposes) along with the rest of your estate.

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Q: How can I control my own Medical treatment if I become incapacitated?

A: A "Living Will" is a legal document used to declare that you do not wish to be kept alive by extraordinary means if you have an incurable or irreversible condition that is likely to cause your death within a relatively short period of time. The Living Will also directs that nutrition and hydration should be withheld or withdrawn unless necessary for your comfort or to alleviate pain. In most instances, the patient who needs to rely on the Living Will is unable to express his or her wishes to the doctor, by reason of physical or mental incapacity. The "Health Care Proxy" fills this gap.

A "Health Care Proxy " is signed at the same time as the Living Will, and names a person to make medical decisions for you when you are unable to do so. The Proxy goes into effect when the attending physician determines that the patient lacks the capacity to make health care decisions. The agent has the full authority to make health care decisions on behalf of the patient. The agent's responsibility is to act in accordance with the patient's best interests. (Back to Top)


 


Find the answers to frequently asked questions:

Mary Beth

Mary Beth Aquiline

Phone: (716) 824-7200
Fax: (716) 824-8728
Email: mbaquiline@lorigo.com

Specialty:

  • Wills
  • Estates
  • Probate & Trusts
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