The power to administer or manage the estate after a person’s death is granted only by the court. This power is granted through the court’s issuance of letters testamentary or letters of administration.
The first step in getting the power to administer the estate is to determine whether probate is necessary. There are two questions you should ask when determining whether probate is necessary. Is it a probate or non-probate asset? Is the value of the decedent’s estate considered a small estate?
First, review the assets of the decedent and identify which are the probate from non-probate assets. You only need a power from the court to manage the estate of the decedent for probate assets.
Non-probate assets are assets with designated beneficiaries. These include IRA, 401k accounts, life insurance policies, bank accounts, or investment accounts with a designated beneficiary. Examples of these accounts are in trust for accounts, payable on death, or transfer on death. It also includes property owned under a trust, tenancy by the entirety, or joint tenancy with rights of survivorship. Non-probate assets do not need to go through probate. They can be immediately transferred to the designated beneficiary without a power issued by the court.
Probate assets, on the other hand, are generally assets solely owned by the testator without designated beneficiaries. Examples are real estate or bank accounts owned by the decedent in his own name without a designated beneficiary. The transfer of probate assets from the decedent’s estate to the beneficiaries or heirs requires the issuance of a power granted by the court through letters testamentary or letters of administration.
Second, identify whether the decedent’s estate is a small estate or not. A small estate in New York is an estate without real estate and with less than $50,000 in personal property as probate assets. In New York, a small estate does not require the issuance of letters testamentary or letters of administration from the court. The transfer of probate assets in a small estate can be made by mere affidavit in a voluntary administration proceeding.
If there is real estate or probate assets of personal property worth more than $50,000 in New York, you need to file a petition for probate or petition for administration, depending on whether the deceased died with or without a will. This petition, once granted, will give the petitioner the power to manage the estate after death.
In case there are objections to probate, you could file a petition for preliminary letters testamentary that allow you to manage the estate after death but prohibits you from making distributions to the heirs or beneficiaries.
Getting an experienced probate attorney can save you time and costs in filing your petition because there are less chances of making mistakes which could prolong the process.
To get the power to administer the estate after death, you need the court to issue letters. These letters (either testamentary or of administration) are showed to financial institutions, county recorders, and other third parties in order for the latter to grant you access to the decedent’s assets. It allows you to establish an estate account, where assets of the decedent can be transferred to. Without these letters, third parties will not grant you access to the decedent’s assets.
Getting a power of estate can be a complex matter, especially when complications arise after the filing of the petition. An experienced probate attorney will be helpful in ensuring that you receive the letters timely and without any delay. Should you need assistance in filing this petition, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].