How to Avoid Probate Using Real Property Deeds as Estate Planning Devices

How to Avoid Probate Using Real Property Deeds as Estate Planning Devices

Alice and Bill live in Brooklyn. They are about to purchase their first home. Understanding how expensive the Brooklyn real estate market is, Alice’s mother, Cathy, is going to contribute some money towards the purchase of the property. But how can this deed be titled to both preserve the mother’s rights and avoid Probate.
There are a number of ways to hold property and not go through probate:

  • The first way to hold property is as “tenants in common.” Tenants in Common are considered to own their share of the property and be responsible for all costs of their pro rata share. When a tenant in common dies, that person’s share passes via that person’s estate. If a person has a Last Will and Testament, then the property will pass pursuant to that Will. If the property was transferred into a Trust, then the asset will pass pursuant to the terms of the Trust. If a person dies without a Will then the property will pass in accordance with the laws of intestacy (or, in New York, pursuant to Estates Powers and Trusts Law Section 4-1.1). The estate of a person who holds property as a tenant in common will then have to determine what needs to be done, including whether they need Court approval to sell. A tenancy in common may be the optimal way for two parties who have different remainder beneficiaries to hold property. However, this way of holding property may not be ideal for those parties desiring to pass their property to the same person, or, those trying to avoid probate (click here to learn more.)
  • Another way to hold property is as Joint Tenants. Joint tenants each own the full share of the property. Upon the death of one tenant, the second tenant automatically succeeds to the deceased tenant’s ownership interest in the property. There is no need to probate.

What about Cathy? Can Cathy’s contribution to the property be reflected in the deed? Perhaps Cathy should be given a “life estate.” A life estate is only available during a person’s lifetime. During life, the other parties cannot sell or do anything to the property without the consent of the life estate holder. A great option if Cathy does not want Alice to cash out and move out to another state. At death, the life estate holder’s interest is extinguished, again avoiding the need for probate.

What’s the best option for Alice, Bill, and Cathy? Under these circumstances, a joint tenancy deed with a life estate for Cathy.

Additional resources provided by the author

For more information, please contact estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@gylawny.com
Or visit her at her new location:
Grimaldi & Yeung LLP
80 Maiden Lane
Suite 304
New York, NY 10038

Visit Regina on Google+

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

Probate – Letters of Administration C.T.A.

Probate – Letters of Administration C.T.A.

Jack died last week in Brooklyn, New York. His cousin, Maria, found his Last Will and Testament while searching for details about his cemetery plot. The Will left a portion of Jack’s estate to Maria and named Maria’s mother, Jennifer, as Jack’s executor. Jennifer had passed away several years earlier. The successor Executor also died before Jack.

Jack left behind assets which did not have a beneficiary designation or otherwise pass by operation of law. Thus, probate was necessary. Maria became concerned about who could administer this estate.

Maria may seek to be appointed Administrator C.T.A. of John’s Will.

Administrator C.T.A. literally means “letters of administration with the will annexed.’’  An Administrator C.T.A. may be appointed when an individual dies and has a Will which either:

  1. Fails to name an executor;
  2. Names an executor and/or substitute executor who has predeceased the decedent or died during the administration of the estate; or
  3. Names an executor who for whatever reason fails to qualify as executor of the estate

In this case, Jack’s named executors have both died before him. Although the named executors have predeceased him, is Maria statutorily able to obtain letters of administration, c.t.a.?

Surrogate’s Court Procedures Act Section 1418(1) states the priority of individuals entitled to receive letters of administration c.t.a. as follows:

  1. To a sole beneficiary of the Estate;
  2. To one or more of the residuary beneficiaries

If there is no eligible person entitled to letters who will accept, the court may issue letters to one or more of the “persons interested” in the estate.

Maria is named as a beneficiary of Jack’s estate and therefore would be entitled to petition and obtain letters of Administration, C.T.A.

For more information about how Maria would qualify and how to tackle the specific hurdles of being an Administrator, C.T.A., feel free to contact our office.

Additional resources provided by the author

For more information, please contact estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@gylawny.com
Or visit her at her new location:
Grimaldi & Yeung LLP
80 Maiden Lane
Suite 304
New York, NY 10038

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

To Probate – or Not to Probate? That is the Question. Below May Be The Answer 

To Probate – or Not to Probate? That is the Question. Below May Be The Answer 

Suzy died in Brooklyn, New York last week. She was survived by her five children. Suzy’s youngest daughter, Laura, claimed that she was in possession of Suzy’s original Will. The other four children were shocked and surprised to hear this because Suzy always told them that she didn’t need a Will as she intended for everything to be spilt equally among all of the children. Laura filed the Will with the Court. She did not file a probate petition because she was not listed as the Executor.

Laura told her brother, Jason, that he should file for probate because he was listed as the executor. Jason consulted his remaining siblings and Jason, along with the remaining siblings, decided that they did not want to offer the Will for probate. Instead, they wanted to take the position that Suzy didn’t leave a Will and therefore, seek Letters of Administration.

There are several instances where the Court may issue Letters of Administration despite the existence of an instrument purporting to be a Will. Examples are:

  1. When the distribution scheme under the Will is the same as without a Will (the Will gives equally to all of the children and the children would get equally without the Will) and the expense of probating the will is too great relative to the size of the estate because of a technical issue with the Will (difficulty in locating witnesses and no self-proving affidavit).
  2. When the distribution scheme under the Will is different than without the Will but all of the parties (both beneficiaries and distributees) consent and the Court is satisfied that no useful purpose would be served with a probate proceeding.
  3. When the sole beneficiary is also the sole distributed who wants to avoid probate costs.
  4. Where the Will has not been probated within a reasonable time or the probate proceeding has not been diligently pursued.
  5. Where all of the disposition set forth in the Will have lapsed for some reason

It is important to review the dispositive provisions of the Will and gauge the steps necessary to probate the instrument in order to determine whether to proceed with probate, or whether, it may be more efficient and economical, to simply set aside the will and seek Letters of Administration.

Additional resources provided by the author

For more information, please contact estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@gylawny.com
Or visit her at her new location:
Grimaldi & Yeung LLP
80 Maiden Lane
Suite 304
New York, NY 10038

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

Owed Money from a Dead Person? File a Claim Against the Estate

Owed Money from a Dead Person? File a Claim Against the Estate

Are you owed money from a dead person? The example below explains the law around filing claims against an estate.

Harry and Jesse were friends for many years. During the last year of Jesse’s life, Harry spent a small fortune taking care of Jesse. Harry paid for Jesse’s home care aides, bought Jesse food, paid for Jesse’s travel to and from the doctors, and even paid for a portion of the funeral. After Jesse died, Harry added up the expenses and saw that he had spent well over thirty thousand ($30,000) dollars on his good friend. Could he be reimbursed for his expenses, he wondered?

Article 18 of the New York Surrogate’s Court Procedures Act allows for a creditor to be reimbursed for debts and funeral expenses.

The claim should be in writing, contain a statement of the amount of money due and contain a statement of what the money was used for. The creditor should also include a sentence indicating that they have not been paid for any portion of the claim that they are presenting.

The claim should be presented to the fiduciary of the estate within seven months after the appointment of a fiduciary (executor, administrator, temporary administration, or preliminary executor). The statute requires that the claim be presented either personally (hand delivered) or sent by certified mail, return receipt requested to the address that the fiduciary provided to the court when he applied to become a fiduciary.

Once the claim has been properly presented, the fiduciary has 90 days to accept or reject the claim. If the fiduciary accepts the claim, then the fiduciary will pay the creditor, usually at the time of settlement of the estate. If you don’t hear from the fiduciary within 90 days, then you can assume that the claim has been rejected.

If the fiduciary rejects your claim, you can ask the Court to determine the validity of your claim. You would file an Order to Show Cause and a Petition and ask the Court to order the fiduciary to pay the claim. The Court would decide the claim as part of the accounting proceeding.

Summarily, Harry can seek reimbursement for his expenses and should follow the procedures outlined in Article 18.

Additional resources provided by the author

For more information, please contact estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@gylawny.com
Or visit her at her new location:
Grimaldi & Yeung LLP
80 Maiden Lane
Suite 304
New York, NY 10038

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

So You Need Immediate Access to Decedent’s Assets…

So You Need Immediate Access to Decedent’s Assets…

Your parent died in the middle of winter. Your parent rented out the upstairs portion of their home. The tenant called and said the heater blew and he is withholding rent. Your parents financial advisor just called and said that he needs access to sell some of the portfolio holdings to mitigate loss. And to make matters worse, you just found out that you may have a half-brother, who may be entitled to a portion of the estate.

You are not sure which problem you want to tackle first. But all three problems boil down to the same issue – you need Immediate Access to Decedent’s Assets and make some basic, important, and expeditious decisions on behalf of the decedent.

The solution: Preliminary Letters Testamentary (for when the decedent died with a will) or Temporary Letters of Administration (for when the decedent died without a will).

New York Surrogate’s Court Procedures Act (“SCPA”) Section 1412 allows the fiduciary named in the Decedent’s Will to petition the Court for immediate authority to handle the Decedent’s affairs. Similarly SCPA 901 allows an interested party to petition the Court for immediate authority to handle the Decedent’s affairs.

The Decedent’s fiduciary (be it person named in Will or next of kin who will be handling Decedent’s affairs) should petition the Court and request immediate access. The fiduciary will need to provide a short explanation of why immediate access is necessary, be it to pay bills, have authority to commence an eviction proceeding, have authority to make financial decisions, safeguard property, or repair property. While the fiduciary may have immediate access to funds to ensure the safekeeping of the property and proper administration of the estate, the fiduciary may not distribute any assets to satisfy a legacy or bequest until full letters are issued.

Although the Court may grant immediate access to Decedent’s assets, the Court may also impose limitations. For example, although the Court may allow a fiduciary to pay the bills of the estate, the Court may also limit how much of the assets the fiduciary may collect. The Court may also request that the Fiduciary post a bond as a way to safeguard assets for the rest of the Decedent’s heirs. For example, when the estate may be contested, the Court may want to ensure that Decedent’s assets are protected. (Certain counties, such as Queens, may request that you pay a fee for the filing of the bond.)

Preliminary Letters or Temporary letters are usually valid for 6 months at a time so the fiduciary will need to act quickly and renew if necessary.

In short – yes – immediate access is possible but, with restrictions.

Additional resources provided by the author

For more information, please contact estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@gylawny.com
Or visit her at her new location:
Grimaldi & Yeung LLP
80 Maiden Lane
Suite 304
New York, NY 10038

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.