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The passing of a loved one: Part One

September 2020 | Marianne Rantala, Esq.
Do not worry about legal issues during those first crucial days after a loved one passes away. The only exception would be if there is something serious such as a minor child left living with someone dangerous or someone with a Power of Attorney who is cleaning out the deceased loved one’s bank accounts. Otherwise, it is prudent to wait until after the funeral to consult with an attorney.

Clarity in the face of grief is important not only to keep moving forward in your life and process your emotions in a healthy way, but also to make the important decisions often faced when someone passes. For that reason, it’s sometimes necessary to seek grief counseling to get that clarity to move forward in your life.

What are your next steps?
Find out whether your loved one had a Will or a Trust prepared during their life. If there is a Trust and your loved one’s assets are properly titled in the name of that Trust, a court proceeding would likely not be necessary.

When there is no Trust or only a Will – and your loved one’s remaining assets are significant – a proceeding must be filed in Surrogate’s Court. In any event, it would be helpful to have the help of an attorney in dealing with the administration of the estate whether there is a Will, Trust or neither. Attempting to go to Surrogate’s Court without legal counsel would be a difficult task while dealing with the grief over your recent loss.

What is your Probate?
Probate is the public Surrogate’s Court process where your loved one’s Last Will & Testament is reviewed and approved by a judge, and their property and possessions (the “Estate”) are distributed to beneficiaries after all debts are paid. The Surrogate’s Court appoints an “executor” through legal documents called “Letters Testamentary.”

Generally, only an estate over $50,000 must be probated, but there are certain “family exemptions” that allows distribution of minimal assets to family members without court intervention.

Certain assets such as life insurance proceeds, retirement accounts and jointly-titled assets are not subject to probate since they pass by operation of law. However, if any beneficiary is under 18 years of age, the court must appoint a “guardian” to handle the assets until the beneficiary reaches 18 (unless the Will contains a Testamentary Trust).

The Executor (usually named in the Will) must file a petition in Surrogate’s Court with the original Will and certified death certificate. The petition must include the name of all beneficiaries, legal heirs and an estimate of the value of the estate. All beneficiaries and legal heirs are notified of the probate proceeding, which is open to the public.

The judge of the Surrogate’s Court will decide whether the Will is valid, was properly executed and whether your loved one was of sound mind nor unduly influenced nor coerced to create the Will. If someone contests the Will, it is usually because that person believes your loved one was subject to some sort of undue influence, fraud or not of sound mind.

The Executor may be paid for work done during probate, depending on the value of the estate. Some of the executor’s work includes marshalling and inventorying all your loved one’s property and assets and transferring them to the estate.

You will also need to pay the estate’s bills, file any necessary tax returns, pay income and estate taxes, collect debts owed to the estate, invest and manage your loved one’s assets during probate, and distribute the remaining estate to the legitimate beneficiaries.
The probate process can take from nine to 15 months or more, especially in the case of a large estate, Will contest or fighting beneficiaries. If everything is in order, the estate may be closed (usually with the filing of an inventory or other documents proving the beneficiaries have been paid and are accepting of their inheritance).

What is Intestate Administration?
An intestate administration is a Surrogate’s Court proceeding when there is no Will or Trust, or when the Surrogate’s Court judge decides that a Will is not valid. Since there is no valid Will, beneficiaries are the legal heirs according to New York State’s intestacy laws.

Heirs are the surviving spouse, any surviving children of the decedent, parents, siblings and other more remote relatives. The proceeding is usually filed by the surviving spouse or children (if no spouse), parents, siblings, grandchildren, etc.

In all other respects, an administration is similar to a probate proceeding, except the Surrogate’s Court will appoint an “Administrator” rather than an Executor. The judge will issue “Letters of Administration” to allow the administrator to carry out the various duties, which are identical to those in a probate proceeding. Once again, if everything is in order, the administration can be closed after distributions are made according to the Surrogate’s Court order.

If you have any questions about the matters discussed in this article, please contact your Legal Service Plan’s National Legal Office at 800-292-8063.

Check out part two of this article in the December 2020 issue of the Preventive Law Guide.