Post-Mortem / Probate Archives - Page 2 of 3 - Law Offices of Daniel Timins

“Name That Witness” (to Your Will)

Posted on May 24, 2017

When you execute your Will you MUST have it witnessed by at least two competent adults who are not beneficiaries in the Will. When you die New York’s Surrogate’s Courts require the names of the witnesses to be listed in the Probate Petition. And so it is nothing short of stupefying to me how many Wills have witness signatures that are completely illegible. This is somewhat understandable if you execute your own Will, since non-attorneys are not in the business of drafting Wills. The signers of illegible signatures are also more easily identified in the event it was the Testator’s friends or neighbors who signed (and thus the identities of the witnesses are more easily deduced). But many attorneys’ witnesses

What is the New York Public Administrator?

Posted on May 2, 2017

The New York Public Administrator is one of a chosen office of attorneys in each county that the Surrogate’s Court often calls upon to administer to non-standard probates and estate administrations. The Public Administrator generally has the job of handling estates of people who die without a Will and who have no close relatives who are able to administer the estate: If your nearest living relative is a cousin (or more distant) the Public Administrator will need to be placed on notice, and usually handles the estate if there is no Will in these circumstances. In addition, the Public Administrator often replaces initial Executors or Administrators who are unable to qualify or unable to serve due to being felons, having

5 Reasons to Avoid Giving Small Gifts in Your Will

Posted on April 18, 2017

If you have immediate family members whom you love, it is assumed you will leave most of your estate to them. In this case, leaving a few hundred dollars to a distant niece or friend is rightly viewed as an unnecessary sign of respect and kindness. But beware: The amount of time, legal fees and other costs associated with giving a $1,000 bequest in your Will can cost as much as leaving a $50,000 to that beneficiary. In fact, leaving small gifts to people using your Will is a sure way to increase your legal fees in New York, oftentimes incurring more expenses to send the gift than the amount of the gift itself: Cost of Mailing Notice (Required):

Increase Executor Commissions by Including Real Estate Transfers

Posted on March 28, 2017

You have a good deal of latitude structuring Executor’s commissions in a Will. There are many subtleties to default Executor commissions that apply if you don’t substitute them; in order to be fair to your Executor, one that you may want to modify relates to instructing your Executor to transfer real estate under the terms of your will. In New York, Executor commissions are based on collecting and distributing property, primarily intangible investments. These commissions are easy to calculate, since investment assets are easy to price, transfer and sell. But the family home – typically the largest Probate asset – is not so easy to administer, and is not always commissionable. If the real estate is sold as

5 Special Provisions You Should Add to Your Will

Posted on March 15, 2017

At some level, American Wills have not changed much in the last 200 years: Just like in old-timey England you need to (1) state who gets what, particularly anything left-over (your residuary estate), (2) who shall manage your estate’s affairs (your Executor), (3) you need to sign your Will or have someone do it for you in your presence with your permission if you don’t do so yourself, and (4) you need two disinterested witnesses who sign your Will in your presence as you state it is your Will. However, there are a few modern developments and government programs that justify adding the following provisions to even the most routine Wills: Contingent Ownership of a 529 Plan: If you

Turnover Proceedings: Retribution for First Come, First Served

Posted on May 27, 2016

The early bird often gets the worm, even if he was not supposed to. When a person passes away many people have a tendency of ransacking the decedent’s property. Co-Signers often run to the bank to empty the safe deposit box (which is illegal in New York), people with access to the house take all types of personal belongings, and some absconders legally use the decedent’s credit cards. Outsiders may redirect mail containing financial information to their own addresses, then act as they see fit. Other times people will have an incapacitated person sign a Power of Attorney or blank checks, or even forge the signature. When that person dies the property that was supposed to go to one person goes to someone else. I

Destroy Your Old Will! Avoiding Problematic Probates

Posted on September 9, 2015

To probate a will you typically need the original document for the courts to commence the legal proceeding. Unlike Trusts, LLC Operating Agreements, Powers of Attorney, etc., where a copy shall typically suffice, a valid will is expected to be an original will. So what happens when there are two original wills that differ from one another? It’s more expensive: The first sentence of 99.9% of all wills is “I hereby revoke all wills and codicils.” This means that any previous version of an will is superseded by the new, most recent will. It also means that those parties who have been adversely-affected by the new will, must be given formal legal notice of the new will being offered

Contracts: Your Will and the Probate Process

Posted on July 17, 2015

Many people aren’t aware of the number of contracts that apply to them every day. Like all contracts, there are at least two parties to any given contract: Your bank account was opened by signing a contract under the bank’s terms; your attendance at the Yankee game is contingent on you following the 2 point font contractual terms on the back of the ticket; the credit card receipt you signed to pay for lunch today is a contract; even the US Constitution is a contract between “we the people” and the US government (though many would say one party is gravely in breach of their end of the bargain, but that is for someone else’s blog to address). Your Last

Dealing With the Unthinkable: Handling Affairs After the Death of an Adult Child

Posted on April 24, 2015

I was 4 years old when my father passed away. This obviously caused me a great deal of childhood trauma, and the associated financial and emotional cost to my family to “rehabilitate” me was substantial. Only as I have aged and entered this profession have I become aware that his death seriously affected many other people in the family, not least of which was my mother. But instead of choosing the more obvious individuals, let’s discuss the strain that affected his parents, my grandparents. Depending on the family’s financial dynamic, the loss of an adult child can be absolutely devastating: Some parents have placed an enormous amount of resources on raising that child, and may have sacrificed to the point

PROBATE: Beware the Court Clerk!

Posted on April 13, 2015

For those of you that missed it, my March 26th blog post spoke of the importance of being exceedingly nice to court clerks while initiating the Probate process. The clerk is (a) extremely knowledgeable as to how Probate works, (b) the gatekeeper and only individual who can begin the proceeding, and (c) a human being with feelings. As such, treat them with respect. That is not what this blog post shall cover. Clerks, like all people, are human beings and human beings are fallible. You have to understand and accept this fact, or your visits to the Surrogate’s Court will end in you wanting to drown your bad mood at the nearest Happy Hour. I have had clerks tell me