Q: My grandparents on my mom’s side are leaving me their house in their will after they both pass away, will I be able to sell it right away? A: No, if a property left to you through a bequest in a last will and testament, the will must be probated before the property passes to you. Depending on where you live and what other family members are involved, probate may be a lengthy process and create delays in your ability to sell.  There are several ways of owning real property. If the deed to a property is held by a married couple, the ownership is tenancy by the entirety. The legal ..read more

Whenever a loved one passes, especially one that was depended on, it is often difficult for one to even consider the next steps, yet alone know what those steps are. To start, there will be two professionals you’ll want to seek professional advice from. One is a Trust and Estates Attorney who can help review your spouse’s estate and determine the next steps as it relates to the distribution of their assets. The other will be with a financial planner to help analyze your finances and come up with a financial game-plan for the future. When meeting with the attorney, you will want to bring your ..read more

Not all estates require a probate or full administration proceeding in New York State. A small estate proceeding, also known as a Voluntary Administration, is a simplified Surrogate’s Court procedure. Voluntary Administration is available if the decedent died with or without a Will. What Estates Qualify for a Small Estate Proceeding? Under Article 13 of the SCPA, Voluntary Administration is available if the decedent passed away with $50,000 or less in personal property. Personal property includes cars, cash, stocks — anything but real estate. The Voluntary Administration proce ..read more

The legalities surrounding a Last Will and Testament stem from Roman times, when six witnesses affixed their personal seals to a Will. The Will was later validated by examining these seals to make sure they remained intact. Today, we use staples instead of seals, but because the Probate process remains so formal, many misconceptions exist. Let’s discuss some of the more prevalent myths surrounding probate that we encounter. Myth: If I have a Will, my estate doesn’t have to go through Probate. While a Will documents where your assets go at death, a Will does not avoid Probate. Probate is ..read more

Pursuant to New York State law, you cannot completely disinherit a spouse. A surviving spouse at the time of a decedent’s death has a statutory right to inherit an “elective share” of the deceased spouse’s assets. A surviving spouse may elect against the deceased spouse’s estate in an amount up to $50,000 or one-third of the net estate, whichever is greater.  If the estate is less than $50,000 in total, the elective share is the value of the entire estate. New York State Estates Powers and Trust Law § 5-1.1A sets forth the right of election for a surviving spouse. The EPTL overrides ..read more

One of the most disruptive proposals put forth last year by Congress was the elimination of the tax-free basis step up at death. Luckily for many of our clients, the legislation was never enacted. People all over the country benefit from basis-step up when they inherit low basis property which they can turn around and sell without paying taxes on the gain. Under current law, taxpayers pay taxes on capital gains when they sell an asset for a profit and realize a gain. For example, a person buys a house for $100,000 (basis) and twenty years later it is worth $1 million dollars. Capital gains ta ..read more

Passing away without a Will is known as dying “intestate.”  Many people mistakenly believe that if they die without a Will their assets go to the State. If there is a blood relative that can be located, the assets do not escheat to the State. New York EPTL 4-1.1 governs distribution of assets for those who die without a Will. The statute lays out a strict inheritance succession and order of priority regarding who can be appointed Administrator of the estate. The Administrator, like an Executor under a Will, collects the assets and distributes them according to the law. An  ..read more

Did you know that banks, insurance companies, corporations and courts are required by law to report dormant accounts to the New York State Comptroller? These organizations must attempt to notify you by mail and publish this information in newspapers. Nevertheless, many funds remain unclaimed and are turned over to the Office of the State Comptroller. New York State has approximately $17 billion in unclaimed money. Each day New York State returns $1.5 million of unclaimed funds to those who file claims with the Office of the New York State Comptroller. A guardian or executor of an estate—anyon ..read more

The Build Back Better Act was passed by the House of Representatives on November 5, 2021 and is headed for the Senate. None of the major provisions that would have affected estate planning were included in the House version. However, the Senate may put some of those provisions back in before passing. We will keep you updated on any new changed. The Tax Cuts and Jobs Act (the “Act”) increased the federal estate tax exclusion amount for decedents dying in years 2018 to 2025. The exclusion amount is for 2022 is $12.06 million. This means that an individual can leave $12.06 million, and ..read more

When you’ve taken the crucial step of drafting a Will, it’s equally vital to prepare your chosen executor for what lies ahead. Informing them ahead of time ensures a smoother process during what can be a challenging period. Here’s a guide you can use to brief your executor on their responsibilities and the nuances of probate, along with a mention of other estate planning tools that are worth considering. Assets Subject to Probate:  Begin by explaining that assets titled solely in your name without a designated beneficiary will be governed by the terms of your Last Will and Testament. Thes ..read more