New York Estate Planning Legal Questions

It is highly recommended that you have an attorney prepare a living will and discuss all estate planning with you.  Our office can provide you with complete estate planning and solid advice for a reasonable flat fee that will be worth every penny.  Please feel free to contact me if you have any questions.... Read Answer

It is always advisable to have a lawyer review your estate planning and advise you accordingly, including with respect to any modifications.  Wills can be invalidated or contested if they are not prepared properly.  It is better to pay an attorney to do it right the first time.  ... Read Answer

It sounds like the administrator of the estate id trying to account for expenses of the deceased which may have been paid out of his or her account after he or she died for bills which existed at the time of his or her death.  This would be necessary for purposes of any estate or inheritance tax returns.  Debts of a deceased person are typically allowed as deductions from the taxable value of any property he or she had at the time of death.  As for your individual accounts information that sounds like overreaching but the joint account is probably proper.  For the joint account if you do not turn over the information the Executor may need to use a subpoena to order you or the bank to turn over the statements.  I advise you to do what you can to cooperate - it helps resolve loose ends for your now-deceased partner.... Read Answer

Our firm is highly experienced in estate litigation disputes.  That is one of our main practice areas.  Beneficiaries, nominated executors, administrators, individual and corporate fiduciaries, trustees and other third-party professionals rely on our attorneys to create compelling solutions to the most complex estate-related conflicts. Our services include will probate, will contests, estate and trust accounting, discovery proceedings, turnover proceedings, defending fiduciaries, protecting beneficiaries, and so on. Below is a link. https://www.vmmlegal.com/areas-of-practice/wills-trusts-and-estates/trust-and-estate-litigation/ Please give me a call if you'd like to discuss your case.... Read Answer

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area.  Without a will, when the last of the parents die, the siblings inherit equally. Grandchildren do not inherit when their parent is living who would inherit. If the siblings do not agree on who will represent the estate or upon the split of specific assets, the court could decide who represents the estate and the split, which could also include a sale of specific property wherein the proceeds would be split among the siblings. Each party would be responsible for their own legal fees or could challenge legal fees being deducted from the assets of the estate if the personal administrator deducts fees from the estate, or attempt to claim legal fees should be paid from the estate due to them benefiting the estate. Separately, when the first parent dies without a will, the children could have a right to inherit at that point also. See section 4-1.1 of the Estate Powers and Trust law. If you need any assistance, a New York Trusts & Estates Attorney could help you.... Read Answer

The short answer is that a fresh set of eyes may be a good thing.  There are many ways to deal with the on going commission income, but more facts would be needed. Partial on going distributions are the preferred method of addressing the problem.  Lee David Auerbach Auerbach Law Group, P.C.... Read Answer

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. When one of the joint owners of property dies, that does not necessarily mean that the surviving owner has to sell their share of the property. However, the heirs of the owner that died can attempt to force the sale of the property through a partition and sale action depending on how the property was originally held (if legally held as tenants in common as explained below). So, it is not automatic that the property has to be put up for sale. Either one or the other owners can buy out the other owner or owners or there is a sale to a third party. If the owners do not agree to the sale, one of the owners can attempt to petition the court to force the sale of the property in a partition and sale action. Note that when there are multiple owners of properties, the owners can own the property as tenants in common or joint tenants of rights of survivorship. If the deed says with joint tenants with rights of survivorship, then the surviving owner inherits the property. If the deed does not say joint tenants with rights of survivorship, then it is presumed to hold as tenants in common wherein each owner's heirs inherit their share. If you need any assistance, a New York Trusts & Estates Attorney could help you.... Read Answer

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. Generally, in order to sell the property when there is a life estate, all of the life tenants and remaindermen have to agree to the sale. Yet, a remainderman could sell, assign or transfer his or her interest in the property, but the buyer would have to take the property subject to the rights of the life tenants and other remaindermen. In other words, in effect, if all the life tenants and some remaindermen agree to sell their share of the property, the remaindermen who did not sell their share would remain as property owners holding the property as tenants in common with the new buyer or buyers. So, it is possible to argue that a contract among the other parties to sell their share of the property remains valid while the remainderman who did not agree to sell her or his property interest would keep her or his property interest and become a tenant in common with the other buyer or buyers. If you need any assistance, a New York Trusts & Estates Attorney could help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read Answer

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. You do not mention whether your husband has living children. If so, you may have to open an estate proceeding. If he has no living children, you would inherit both properties by what is called "operation of law." If the motor home has a value of $25,000 or less, it automatically transfers to the surviving spouse. If the surviving spouse wishes to transfer ownership, according to the DMV, you must print the decedent’s name in the “Seller’s Name (Print in Full)” section on the back of the Title and sign their name in the “Seller’s Signature” Section followed by the words “as surviving Spouse”. For the house, you would file a petition with the county property records department to transfer the title into your name. If he had children, then you may have to open an estate proceeding if the house is worth more than $50,000. If you need any assistance, a New York Trusts & Estates Attorney could help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read Answer

Hello. My name is Damien. I am an attorney in New York City practicing in the New York City metropolitan area. Your mother has a right to designate in a will who will get her personal property upon her death. She can split the property as desired among heirs or beneficiaries. Also, she has a right to gift personal belongings now. If she lacks capacity or someone is unduly influencing her to make decisions about gifting or bequeathing her property, that could be an issue of a dispute. In these situations, it is best for testators to put their wishes in writing in a will. If later it is determined the testator did not have the capacity to execute the will or was unduly influenced, then that would be a subject of an estate dispute. If you need any assistance, a New York Trusts & Estates Attorney could help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read Answer

Hello. My name is Damien. I am an attorney in New York City practicing in the New York City metropolitan area. For estate administration and probate issues, you would want a Trusts & Estates (T&E) Attorney. T&E attorneys handle, not only estate planning, but also estate administration and probate as well as, in most cases, estate litigation. Generally, when someone dies, the executor, if there is a Will or an heir will become the personal representative of the estate upon petitioning the court. So, an heir could attempt to review the court file to determine the status of a proceeding or attempt to request an accounting of the proceeding informally from the personal representative, or through a petition to the court for an accounting. If you need any assistance, a New York Trusts & Estates Attorney could help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read Answer

Hello. My name is Damien. I am an attorney in New York City practicing in the New York City metropolitan area. It sounds like either you do not have access to your father's residence prior to his death to search his files and records, or you do have access and cannot find the original will or copy of the will. If there is a will, he should have kept either the original in his possession (in his files) or a copy of it. If there is a copy of it and an attorney drafted the will, then you would check to see if the attorney has the original will. Another possibility is that your father filed his will with the Surrogate's Court. It is not necessary to do so. However, a person could file their will prior to death with the surrogate's court clerk. So, you could check with the Surrogate's Court to see if there is a will on file. If you need any assistance, a New York Trusts & Estates Attorney could help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read Answer

Hello. My name is Damien. I am an attorney in New York City practicing in the New York City metropolitan area. It could be possible for you to inherit the funds if you are the successor beneficiary on the account if your father is the designated beneficiary. He could disclaim the funds and then the funds would go to you.  If you are not listed as a successor beneficiary, he can still disclaim the funds. The funds would go into your grandfather's estate. Generally, an heir or beneficiary of an estate can disclaim or renounce a bequest if the beneficiary or heir never has never taken receipt of the money. If your Father is the named beneficiary on the bank account, then possibly the bank could inform him of what the bank needs from him to disclaim the funds. If he is not the designated beneficiary or you are not the successor beneficiary of the account, then your Father or another heir would have to become the fiduciary of the estate wherein your Father would have to renounce his property interest and that money would then be distributed to the heirs of your grandfather other than your Father. If you are the only heir (meaning your grandfather had no other living children at the time of his death), then the money could go to you. If you need any assistance, a New York Trusts & Estates Attorney may be able to help you. If you wish to speak on the phone about it, you can call me at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read Answer

Hello. My name is Damien. I am an attorney in New York City.   I understand you are unhappy with your Last Wills and Testaments. Generally, you could either have someone draft new Wills or attempt to modify the Wills as you were mentioning through a Codicil, which is an additional document that requires the same statutory execution (signing) requirements. Because of the type of software that an attorney can use now to draft Wills, it is rare to use a Codicil in today's day and age. One reason is the chance the Codicil could be lost and/or later challenged and depending on the number of changes it could confuse the issues.  Basically, the cost would be the same. So, the best practice in most cases now is to draft new Wills, revoking the previous Wills rather than attempt to modify them with a Codicil.  It is up to you how you would want to proceed.    If you need any assistance, a New York Trusts & Estates Attorney could help you. If you wish to speak on the phone  to further discuss it, you can call Damien Bosco, P.C. at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read Answer

Hi Joseph:  My name is Damien. I am an attorney located in New York City. If your father still has his mental capacity, he can still execute (sign) a Will. He would need to have two witnesses (and if you are a beneficiary, you cannot be a witness). Generally, it is best to have an attorney draft and supervise the Will signing even when the testator (your Father) has limited assets.  If you need assistance, a New York Trusts & Estates Attorney can help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082.  ... Read Answer

If it is apparent that the named executor lacks capacity or may lack the capacity to perform the duties of the executor, and the testator (the person creating the Will) is still living an has the mental capacity to update a current Will or create a new Will, then it would seem the best way to proceed is for the testator to create a new Will naming another executor. Nowadays, because of software, drafting a new Will is the preferred way rather than using a codicil to modify an existing Will because sometimes codicils are lost. If the testator does not want to update the Will and the named executor lacks capacity, upon the death of the testator, the successor executor named in the Will could offer the Will for probate and inform the court that the named executor lacks the capacity to perform the duties as the executor. If the executor did have some capacity, the executor could renounce the appointment. If there is no successor executor named in the Will, then usually another heir would offer the Will to probate and explain that the executor does not have the capacity. The court may appoint a guardian ad litem to determine if the executor has the capacity although it is unclear the court would do so. It is less likely that a person who has the Power of Attorney for the executor would be named the Executor rather than another heir. So, because of all this uncertainty, it is better for the testator to revise or create a new Will. ... Read Answer

Hello: I am an Attorney in New York. The named executor in the Will can petition the court to probate the Will to represent the estate to gain access to the premises of the decedent. When there is a need to act fast, the executor can request preliminary letters testamentary. An executor named in the Will may file with the court a written request for issuance of preliminary letters testamentary. One reason is to obtain access to the premises of the decedent to preserve and inventory assets. At the same time, if the decedent had been living with someone at the time of death, that person has a right to stay on the premises as a tenant that is entitled to proper notice to vacate the premises according to the landlord-tenant laws. If the tenant is refusing access, there may be a need to request judicial intervention to get a court order for entry.... Read Answer

Because your Father post deceased (died after) your grandmother, his distribution would go to his estate, and eventually to his heirs. So, if your sister and you are his only heirs (presuming he has no living spouse and you have no other siblings), and there is no Will, then you and your sister would inherit from his estate. Someone has to represent his estate to collect the money and distribute the money to your sister and you. Note that if he died before your grandmother, then you and your sister would directly inherit from your grandmother's estate. But since he died afterward, there has to be someone who has the authority to collect the distribution from your grandmother's estate to distribute to his heirs. Because this amount is less than $50k, it could be possible to use a small estate procedure. According to the court's website, the small estate administration is a simplified court procedure available if the person who died (the "decedent") did not have many assets. To do this you need to file a form called an "Affidavit of Voluntary Administration," also known as the "small estate affidavit." Here is a link to the court's website for  more information: https://www.nycourts.gov/courthelp/diy/smallEstate.shtml I hope this helps you better understand the issues. Best regards.  ... Read Answer