New York Estate and Elder Law FAQ

How is property distributed to siblings (Brothers and sisters)? Property to siblings can be distributed in accordance with the will or New York intestacy law.

Partition Lawsuits – how do they work: Partition lawsuits happen most frequently when unmarried people buy a property together. Partition lawsuits also happen when people inherit property together and one of them does not want to sell, usually, the one living in the property. In a partition lawsuit, the court forces the sale of the property.

How do I find assets that are hidden from an estate? If the assets are hidden by the executor, then we typically start an accounting proceeding with the court. The executor might list the assets in accounting. If the executor does not list the assets, or they are missing from the accounting, we then file objections to the accounting. We then use subpoenas to individuals and financial institutions that are suspected of holding the assets. Another way is to file a proceeding for turnover of property. We also sometimes use the assistance of private investigators to locate hard-t0-find assets.

How do I transfer partial ownership of a house? You would use a deed to transfer whatever ownership you want, let’s say 50% or only a life estate.

Does a New York deed need witnesses? A New York deed does not need witnesses. It does need an acknowledgment sworn by a notary.

Does a New York will need witnesses? Yes, a New York will does need witnesses. At least two.

FIRPTA as it applies to the states: Does FIRPTA Apply to an estate of a foreigner? (No) Do I have to withhold for a foreign beneficiary? (Yes)

Does HIPAA apply to a person who died? Typically, in an estate of a person who died, the executor of the estate is authorized to sign a HIPAA form.

Art estate planning – art is an important asset of an estate. It is important to include it in your estate planning, be it  a will or trust.

Who pays for 1404 depositions? – The estate pays for the court reporter, each side pays for their own attorneys’ fees.

Does Power of Attorney work for wills? – No, an agent under a power of attorney does not have the authority to make a will for the principal of the power of attorney.

Can a Power of Attorney transfer the house to themselves? – An agent under a power of attorney may be able to transfer a house to themselves under certain circumstances, such as when there is an appropriate gift rider from the principal.

What are letters of administration Cta, dbn? – Letters of Administration CTA are issued when an executor named in the will is not available. Letters of Administration DBN are issued after an Administrator of an estate is appointed and then becomes unavailable.

Valuation of Jemstones – Jemstones can be valuated by a jeweler.

Can you set aside a stipulation – it is hard and almost impossible to set aside a stipulation in a New York estate.

Abandonment of a spouse in a New York estate – abandonment of a spouse in a New York estate requires specific grounds.

What mental capacity is needed to execute a New York power of attorney? – To execute a power of attorney, a person needs a mental capacity to understand a contract.

Can an incapacitated person under guardianship make a will in New York? – Yes, but it’s best to look at the guardianship order to make sure, as guardianship are narrowly tailored.

Is an administrator personally liable for the estate’s debts? – No.

How does a New York power of attorney work after a person becomes disabled?

When a spouse is the beneficiary of a life insurance policy, Does that beneficiary designation get canceled with a divorce? In New York, no. In other states, such as Florida, yes.

How can a NY trust be terminated – a revocable trust can be terminated by the settlor of the trust by sending a notice of termination to the trustee. An irrevocable trust can only be terminated with the written consent of all beneficiaries.

Is Will reading or reading of the will a requirement? There is no requirement for a “will reading” in New York.

I’m not mentioned in the will even though I am a close friend or relative of the decedent. Is that a ground for a will contest? No, but may show that the attorney was not careful or that the decedent did not remember you.

A Will was not notarized. Is that a ground for a will contest? No. A will does not need to be notarized. Although the self-proving affidavit is notarized.

A person who died told me, wrote to me, or said on video that they are leaving me property. Does that count as a will? No, a will has to be in writing and executed with the due formalities.

My father’s much younger wife married him when he was very old, and then persuaded him to make a will. Is that ground for a will challenge? If the marriage was very short and there was no real relationship, then a will challenge may succeed.

My sibling lived with my parent, and was much closer to them than I was. The sibling persuaded the parent to favor them in a will. Is that the ground for a will contest? The sibling was probably a fiduciary, and as such, may have an increased burden of proving that there was no undue influence.

My relative ‘s friend or neighbor persuaded them to make a will. Do I have a case for a will contest? Possibly. Courts have a record of looking at friends as suspect. But if you are a relative who was absent from the decedent’s life, that’s something that the court will consider as well.

What’s the best way to pass down a share of a business? The best way is to phase in the person while you are still running the business. This is called succession.

Is there a way of probating a copy of a will? It is a hard to probate a copy of the will. You will need to bring witnesses that explain why an original is not there and will need to prove that the original was not destroyed.

Are you allowed to talk to witnesses about the case before depositions? Yes as long as you don’t suggest the answer.

What is a New York state tax closing letter? – It’s a letter that the state sends stating that you have no tax liability.

How to partition New York surrogate court estate property. You would need to file a partition proceeding, the court will appoint a referee who will sell the property and distribute the proceeds to the owners.

Where to look for a will after someone died. You can try their residence, their attorney, safe deposit box, friends and relatives, and the Surrogate’s Court.

How do I prevent lawsuit materials from showing up in search engines. Material such as depositions, even videos of depositions, complaints, petitions, etc. You can make a motion to a judge to seal the case from being available in public records.

Is a HIPAA authorization required when sending out a subpoena for records that involve medical information? Some healthcare providers will not answer a subpoena without a HIPAA form.

Does it ever make sense to make a codicil as opposed to making a new will? Only if making insignificant changes, such as small monetary bequests.

Does New York have a claim for tortious interference with an expected inheritance? New York does not have a claim for tortious interference with an expected inheritance.

Is Estate planning possible for people diagnosed with Alzheimer’s. Estate planning is possible for people diagnosed with Alzheimer’s, especially in earlier stages.

Is Alzheimer’s enough of a reason to challenge a well? Alzheimer’s in and of itself is not a good enough reason to overturn a will, but it is a major signal that the testator did not have the capacity to make the will.

The costs versus benefits of selling your life insurance policy (viatical settlement) during your lifetime. The benefit is getting some money right now, and the cost is losing the opportunity for your heirs to get more money after your death.

What kind of attorney do I hire after someone dies? You would hire an estate attorney or probate attorney.

Does the estate pay for the executor’s lawyer when the executor is accused of misconduct? By default, estate executors charge their legal fees to the estate. One can make a motion to have the executor’s attorneys’ fees charged against the executor’s share only.

Reverse mortgage in an estate – can something be done to not give the house to the reverse mortgage company? You can talk to the reverse mortgage company and try to make a deal with them.

Why do I need an affidavit of comparison? The court needs the affidavit of comparison to make sure that a copy of the will is a true copy of the original.

What exactly needs to be proven by ancillary probate? You need to prove that probate was completed properly in the state of the original probate.

Does inheriting through a trust mean losing the step-up in basis? See https://www.irs.gov/pub/irs-utl/21_-_inherited_assets_-_stepped-up_basis.pdf

What should a trustee do after the death of a person who established the trust? (For example, do you have to give notice to creditors, noticed the relatives who are excluded from the trust, file eState Taxes, etc.) In New York, there is no requirement of a notice to creditors. A trustee does have to follow the directions of the trust, i.e. transferring property or income to beneficiaries, and has to work with an accountant to file taxes timely and correctly.

How does foreclosure work in a property of someone who died? There is usually a pause in the foreclosure until an administrator or executor is appointed, and then the bank adds the estate as a party to the foreclosure.

Do I have to pay income tax on rent paid to my own FLP? Yes.

Do I need court approval to sell real estate belonging to a New York estate? See SCPA 1904.

Who is not eligible to become an executor? See SCPA 707.

What is the order of priority for getting letters of administration? See SCPA 1001. Letters of administration must be granted to the persons who are distributees of an intestate and who are eligible and qualify, in the following order:

What is a child performer trust? A child performer trust is a set up by a parent or guardian to hold the child’s money that the child receives for performance.

When do I need a different attorney to take over my case? If your current attorney is incompetent or is not cooperating or communicating with you.

What do I do when my sister or brother isolates my mother or father from me? You would consider looking into filing a guardianship proceeding.

What do I do if I suspect that my brother or sister is taking my mother or father’s money? You would consider looking into filing a guardianship proceeding, with a demand for an accounting how your sibling was managing your parents’ assets.

What do I do if the executor is taking too long? Nothing happening in an estate? See Scpa 2102. You can file a proceeding to compel the executor to act.

What do I do if the executor of a New York state is controlling the family business and is not reporting the income as part of the estate? You can file for an accounting of an estate, and when the executor provides the accounting, you can object to what you deem to not be listed as part of the estate, including family business income.

Can an executor pay their attorney with estate funds? Executors usually try to pay their attorney’s fees with estate funds. The beneficiaries can file a motion to try to stop that from occurring.

is a New York executor required to file a bond? Only if a will does not say that he can serve without bond or if the executor resides in another state.

Can a New York City vending license the passed down by inheritance? No.

When is it a good idea to compel the production of a will. When you know that the person will produce the will as opposed to destroying it.

What do I do if a trustee refuses to make discretionary distributions from a trust? You can file a proceeding to compel distributions. We would first look at the language of the trust and see if trust distributions are authorized under the circumstances, whether of principal or income, and then possibly file a proceeding claiming abuse of discretion.

Am I responsible for the decedent’s estate debts and expenses? Relatives and executors are not personally responsible for the decedent’s debts or expenses, but they may have to be paid out of the estate.

How do I cut the person out of my will? You will need an estate attorney to make a defensive will that can stand up to a will contest.

Beneficiary designation laws – laws of New York beneficiary designations -Annuity beneficiary, Life insurance beneficiary, does it need to be filed with the institution? Does it need to be signed at the institution? Does it need to be notarized? Does it need to be witnessed? It depends on the rules of the institution. It usually has to be filed with the institution.

Frozen insurance or bank account – contact the bank to see what the problem is, and then contact an attorney to fix it.

Make a will

What is a self-proving will – a will that has an affidavit of witnesses that describes what steps everyone involved followed in the will execution.

Top estate attorneys

Best estate attorneys

What to ask an estate attorney –  see above.

How much money do New York estate lawyers make? Depending on the person.

New York statute of limitations on fraudulent deed transfer

Estate of a Performer (musician)

Estate of an Artist

Can a power of attorney act for an executor or administrator of a New York estate? A power of attorney does not convey the power to be an executor of an administrator of an estate.

Can I disinherit my spouse? You cannot disinherit your spouse completely, they still have the option of filing an elective share to get 1/3 of your estate. If, however, they do not file the elective share, then you might be able to successfully disinherit your spouse.

Inheritance attorney

Diligent search

Order of priority in being appointed as New York administrator of estate: The order of preference for each family member who could serve as administrator is listed as follows:

1. The surviving spouse
2. Adult children
3. Adult grandchildren
4. Parents
5. Adult siblings
6. Others who would have the largest distribution under the estate

Kaiser rule for wrongful death case

How do I make a will?

Do I have to open an estate when there is no money in it? Probably not.

Do Medicaid trusts work? related – does an irrevocable trust help retain step up in basis? Yes.

Does a will have to be filed with the court? The will does not have to be filed when you make the will. It’s not a requirement. There is, however, A process to file the will with the court for safekeeping. The court has a safe for wills filed for safekeeping. After a person dies, the only way to become the executor is to file the will with the court and probate it.

Are reciprocal Wills (mutual wills, mirror wills) revocable? One can revoke a will at any time.

Why are joint wills not used in New York? Because people get confused that a joint will makes a difference in precluding the other person from changing their will. It does not.

Can an attorney serve process in New York in their client’s case? Yes.

How many people can co-administer a New York estate? Up to three.

Abuse of power of attorney – a person who makes gifts to themselves without a duly executed gift rider abuses the power of attorney.

Pet Trust – a trust can be established for a pet in New York, for the pet’s financial support, but a trust will not have the effect of compelling a person to take care of your pet.

Removing 805 Bond Restrictions – removing 805 bond restrictions is difficult. It’s best to comply with those restrictions and get a court order when you need to act outside of those restrictions.

Does an oral will work? Does a verbal will work? In New York, for all intents and purposes, an oral or verbal will does not work.

Due diligence in NY probate (finding relatives or heirs): You would have to have an affidavit from a person who can explain where the unknown heirs are. Frequently, that person is a genealogist.

Affidavit of Heirship

CLAT – charitable lead trust

What happens if a trustee decides to give more money to the beneficiary than the trust allows

Can an irrevocable trust be broken in New York? – Yes, with the written consent of all beneficiaries, settlors/grantors and trustees.

How do I probate a New York will – how does probate work in new york:

Can an executor get the decedents past tax returns, bank statements, financial information. Yes.

Lawyer getting money from a will- friend? Relative? Person disabled? That is allowed, but can be subject to a will contest.

New York personal representative

Can an adopted child inherit from a birth parent? Not by intestacy, only by a will.

Reciprocal wills (mutual wills) – are they binding or are they revocable? They can be revoked just like any other will.

Can I transfer the principal’s property to myself as a power of attorney in New York? Only if there’s a valid gift rider.

Revocable vs irrevocable trust New York – You can change or revoke a revocable trust without consent from its beneficiaries and trustees, not so with an irrevocable trust.

Can an irrevocable trust have a family member as a trustee? Yes, but you may lose some of the trust’s benefits.

Guardian is not doing their job, neglecting the ward: That’s a basis for a procedure to remove the guardian, but it’s up to the court to decide whether to remove the guardian or not.

Expert witness

Expert witness rules New York

Legal malpractice in estate cases – although rare, legal malpractice in estate cases does sometimes happen.

Constructive trust

Defenses to ny partition action

Can an attorney be a witness to a will?  Yes, but then there will be no one to notarize the affidavit of attesting witnesses. Unless they can find a notary who is not the attorney.

Can a person with schizophrenia make a will? (paranoid schizophrenia is the most common one): Yes, but the will may be subject to a challenge, especially if the bequest is unusual or leaves out some close family members.

House trust vs life estate

Died without a will / Who inherits when there is no will / intestacy

Ancillary probate

Probate property sale

Kinship proceeding

Attorney ad litem / guardian ad Litem

Spousal estate litigation

Distribution of an estate

Probate accounting / estate accounting

Trust contest New York

Probate litigation

Estate administration

Inheritance by minors

Disabled person compromise

Is my estate plan valid if I move to another state? Yes.

Who may serve as an administrator of a decedent’s estate? Whoever inherits from their estate (their distributes).

Can a copy of a will be admitted to probate? Usually not, but it can be used to prove the contents of a lost will.

Unknown heirs

What is a distributee – someone who inherits property if there is no will.

Probate assets vs nonprobate assets

How will a divorce affect my estate plan?

Holographic will

How often should I update my will?

What is probate

Can a copy of a will be admitted to probate?

Non-domiciliary probate

A child born after a will was made

Can an adopted child inherit from a biological parent?

Is there a time limit to ask for an accounting?

Make a trust

Make sure my second wife’s children don’t inherit

The wife can use the money during her lifetime and children from first marriage get the money after she dies

How long does probate take?

Reciprocal wills – mirror wills

Can I disclaim an inheritance to avoid creditors?

When is a New York administrator bond required?

Out of state estate administrator

Kinship

Apply for nursing home Medicaid

estate lawyer in New York

Reciprocal wills

Wife left out of a will

Removal of executor

Firearms

Witness to a will cannot be found

Make a will

Hdfc

My husband left me out of his will

Can witness stay in the same room during a deposition?

Can the IRS get my business account?

Execution of a will for a person under guardianship – is someone obligated to inform the court?

Estate planning for biggest dates, family companies discounts for lack of marketability and control

Mini-mental exam

International will, made in both countries, but same document like an international agreement

Does a successor trustee need to sign the trust?

Requirements for making a will in New York

Heartbreakingly aging parents in assisted living

If I die, will property go to my spouse?

Probate a copy of a will

My parent wants to transfer their property to me, how do I get that done? (I want to leave my property to my daughter who lives with me)

How do you record a trust in New York

I want to not give my sister her share of the estate, what’s the downside

Should I make a revocable or irrevocable trust?

Inheritance for music royalties

My sibling is disabled and cannot make their own decisions, how do I take control of their finances?

Is a New York trust automatically revocable/revocable by default

Medicaid investigation – my insurance agent told me to do it

Trust – a way to not let heirs and creditors know you died

How to start a business in the US for a nonresident (New York)

My child took away my business, locked me out of my company

Does a trust become irrevocable if only one of the grantors survives?

2211 examination – also, who pays for it

Nursing home – how to get the money from clients, get the money from the estate

Judge in Brooklyn puts restrictions on a house sale and doesn’t approve it

A person who lives in a semi-attached house attached to me dies, Problems with damage to my part of the structure, what are the average, water damage

Pipes burst in a house on by the state estate

What can the Medicaid trust Pay for?

Who will get my bitcoin or Ethereum after my death?

My sister had my mother sign her apartment over to her

Trust for owning a home as a blended family (lifetime to partner, children after death)

Professional executor, can my lawyer be my executor?

If I die, does my wife stay at the house?

My rights as a trust beneficiary

What happens to the trust principal after beneficiaries die?

Is it abuse of discretion for a trustee to pay just the minimum payment required by the trust?

Set aside stipulation

Does a trust pay a higher income tax rate than a person?

Is a Medicaid trust intentionally defective?

Will I need two Medicaid trusts?

What tax form do I file for a pass-through income tax return on a trust?

Which trusts are taxed pass-through?

Partition in an estate

Partition!!!!!!

Can a lawyer benefit from a will they made?

Settle federal student loans

Proceeding to compel the production of a will, SCP1401

Proceeding to compel the production of a trust

Constructive trust (girlfriend of deceased)

Who is disqualified from being in an administrator if the state? Cannot speak English? Not a citizen? Took bank accounts? Want if understanding? Health problems?

My damage from an accident is bigger than the insurance covers

I received notice of probate

Who is entitled to notice of probate? (Scpa 1409)

Duress in a trust

Undue influence in a will challenge

Lack of capacity in a will contest

Autism and special needs

Update – debate judge

More guardianship marketing

No attorney-client privilege after death

Try color scheme like Casper – dark blue font on light blue background

Can I inherit if I was adopted by someone else

My kids are taking my money and they’re not even nice to me

A trust to protect assets from the second wife (kids perspective and parents perspective)

Hdfc Mitchell Lama apartment edit – succession rights papers with the management need to be filled out, ask the management what options are after death, residency requirements

Can I do a will or trust challenge before the person’s death?

Do I have to provide notice of probate or citation to contingent beneficiaries?

Pro tanto rule? Only those who actually object to an accounting get compensated

Seven months for creditors

How to make a claim against a New York Estate

Defenses against foreclosure

Trust to protect mothers house from my second marriage

Not married but living together and paying the mortgage, house belongs to the boyfriend who died, no will – maybe make a deal with the family

Do I have to notify contingent beneficiaries?

Who gets notice of probate?

How do you cancel (revoke) a power of attorney?

How do you cancel (revoke) A revocable trust

Estate planning for new parents

Protect future inheritance assets from divorce

Suffolk county food stamp snap fraud

Medicaid Lookback period

Is inHeritance taxable

Donor advised fund (daf)

Anti lapse

Commercial litigation

Hra – father not in the household but owns the house and gives cash to the mother

Surviving spouse deed –

Hra – I am not the primary holder of the account, why did I get a target letter from HRa? – Because there’s no such thing as a primary

I trust was discounted or changed to give me less benefits (By trustee, or settlor, Let’s say the trust is irrevocable )

Is inheritance taxable?

Medicaid lookback period

Will I lose public benefits if I move in with my boyfriend

Artie – anti lapse

Trial lawyer – my lawyer says they are not a trial lawyer and cannot do a trial

No attorney-client privilege and will challenge, how about trusts?

Can power of attorney to give property to himself

Beginning of the case questions

I received a citation from surrogates court

Service of citation

Caretaker got inHeritance

Kinship

Lis pendens

Opmg provider audit

Intestate, intestacy

Elements of constructive trust

Court rules topics

The stature of limitations on a forged deed

Too old to make a will?

Intestacy, intestate

distributee

Revoke a trust (irrevocable)

Is inheritance taxable

NY right of election

Administrator of estate

Can an executor sell property

Accessing safe deposit box (Safety deposit box)

Spousal lifetime access trust

Decanting trust

Community Medicaid

Severance pay

Ilit

Medicaid asset protection trust

Supplemental needs trust

New York state tax exemptions

Article 81 guardianship

Waiver of process/waiver of probate

NY scpa

Dynasty trust pros and cons

NY anti lapse statute

Per stirpes

CPLR 3211

Deed transfer from parent to child

Rights of creditors in an estate

Probate timeline

Ancillary probate

Medicaid planning

Formal accounting

Parent-child joint owners

My brother or sister got more than me in our mother or father’s will – Unequal distribution, did not get what I was promised, someone took everything that was promised to me

Stepchildren don’t inherit unless there’s a will

can you sign a will for someone else (like /s/ decedent)

What does /s/ mean? – confirmed copies

What is “issue” in estate law?

Petition to compel the production of a well

Petition to compel an accounting

Executor distribution prior to seven months

Can someone who lives outside the US be an executor

I want to make a will for my mother or father. How do I do that? (Exclude sibling) (make a will for my uncle or aunt) Yes logistics, but no substantive.

Can I pay for someone else’s lawsuit/court case?

NY scpa objections

Testator

Change an existing trust – decanting

Surrogate’s court note of issue

Executor stealing from an estate

Probate a will

Contest a will

intestate

fiduciary duty

Chase Citibank

No contest clause

Decree Granting Probate

Health Care Proxy NY

Pretermitted spouse
Medicaid household composition

Encroachment

Administrator cta

How to avoid creditors at death

Notice of Probate

Preliminary Letters

Administration cti

Limited letters

Will contest – probe

Lost will or trust

does a new york trust have to be signed by two witnesses?

My child’s father died

In terrorem clause

Get out of a trust

Lost will

Kinship

How to amend a will

Executor hiding information

I turned 35 and the trust should be terminated, but the trustee is not terminating the trust

Compel accounting

Executor not communicating with beneficiaries

HRA contacted my employer

Can there be criminal prosecution for HRA fraud

NYC HRA 375 pearl street

Hra – excessive income

Sexual harassment

New York probate lawyer

Left the house to a tenant

when beneficiary contest will who pays for the fees

when co executors disagree in new york

Pa kinship

Typical fee for kinship

Billing for services not provided

Paternity in an estate

Constructive Trust

Property is transferred out of the trust without beneficiaries approval

Trust for beneficiary receiving SSI

How do Medicaid Liens Work – Department of social services claim against an estate (letter in Vinokur file)

Executor living in the house

Medicaid for nursing home

Gift and loan

Bank foreclosing on reverse mortgage

how does a bond work

Estate disputes

Inheritance disputes

price for a NY trust

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