Probate

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.

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.

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.

Judith D. Grimaldi named Fellow of The New York Bar Foundation

Judith D. Grimaldi named Fellow of The New York Bar Foundation

The Law firm of Grimaldi & Yeung LLP announces that Judith D. Grimaldi, Partner, has been named a Fellow of The New York Bar Foundation

Fellows are nominated by peers and recognized for distinguished achievement, dedication to the legal profession, and commitment to the organized bar and service to the public. “Being a Fellow of The New York Bar Foundation is an honor,” states Chair of the Fellows, Emily F. Franchina. “Fellows represent one percent of the New York State Bar Association membership. Being nominated and elected is a notable achievement.”

Grimaldi & Yeung is very proud of Ms. Grimaldi’s outstanding honors and achievements.

Ms. Grimaldi is also actively involved in the legal profession through:

  • National Academy of Elder Law Attorneys, as a Board member
  • New York State Bar Association – Vice Chair of Elder Law & Special Needs Section
  • New York City Bar Association – Past Chair of Legal Problems of the Aging Committee
  • Academy of Special Needs Planners – Charter member

As Foundation Ambassadors, Fellows exemplify the spirit of caring by demonstrating their belief that the practice of law is a helping profession. For more information regarding the Fellows or The New York Bar Foundation visit www.tnybf.org or visit our firm’s website at: www.gylawny.com.

How to Avoid It! – Ancillary (or additional) probate and administration

How to Avoid It! – Ancillary (or additional) probate and administration

Donna owned property in New York and Florida. She did not do any planning during her lifetime. When she retired, she moved down to Florida and lived in Florida full time until her death. After her death, her children begin to wonder how they are going to take ownership of Donna’s property.

When a person dies owning property located outside of their domiciliary state, the decedent’s heirs must bring an ancillary (or another) probate or administration proceeding. This is because a Court that has issued Letters Testamentary or Letters of Administration in one state does not have authority to issue Letters Testamentary or Letters of Administration that are valid in another state. As such, the heirs must obtain legal authority from the state where the property is located to act on that property. Essentially, the heirs must first file for probate in the state of the decedent’s domicile. Then, the heir must bring a second probate / administration proceeding in the state which holds decedent’s additional property.  Having to bring another probate proceeding can add unnecessary cost and delay to the estate.

Who may petition for ancillary probate?

  1. The person expressly appointed in the will as executor with respect to property located within the particular state.
  2. The person to whom domiciliary letters have been issued or if domiciliary letters are not issued, the person appointed in the will to administer all property wherever located.
  3. The person acting in the domiciliary jurisdiction to administer and distribute the testator’s estate.
  4. A person entitled under the SCPA to letters of administration c.t.a. A person entitled to letters of administration c.t.a. is anyone set forth in SCPA 1418(1).

How to avoid ancillary probate?

  1. Place beneficiary designations on your assets
  2. Add a co or joint account or deed holder
  3. Do an inter vivos or lifetime transfer (or lifetime transfer while keeping a life estate)
  4. Transfer the property into a probate avoidance vehicle such as:
  5. Trust (revocable or irrevocable)
  6. LLC
  7. Family Limited Partnership

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.

Do You Need to Probate when Real Property is the Sole Estate Asset?

Do You Need to Probate when Real Property is the Sole Estate Asset?

Joe’s parents both died this year. The only asset in their estate was their home. His parents left a Will. Joe has been staring at this Will and wondering whether he needs to file for probate. He heard that he may not have to.

Technically, under New York State law, property vests in the decedent’s heirs or legatees at the decedent’s death. As such, Joe technically is vested with title to the house immediately upon the death of the last parent.

Although Joe does not need to probate the surviving parent’s Will in order to commence ownership of the real property, Joe may face issues if he wants to sell the property in the future. This is because in order to sell the property, the purchaser will want to make sure that Joe can render good title. The purchase will typically run a title report. The purchaser will also want to procure title insurance. Title insurance will protect the purchaser in the event that another party comes along claiming that the house was somehow wrongfully conveyed to the purchaser.

Before issuing title insurance, title companies will want to be sure that the seller is indeed qualified to pass the property. Title companies will want proof that the seller is qualified to sell the property. There are three options for a seller to satisfy the title company.

  • The best form of proof would be an Executor’s or Administrator’s deed. Obtaining an Executor’s or Administrator’s deed, however, would mean that Joe would have to file for probate or administration. Indeed, Joe would need to file a petition for probate or administration, obtain letters testamentary, or letters of administration, and then sign a deed and related tax forms transferring the property from Joe’s parent’s names to Joe, as Executor, or Administrator of the Estate. This can be a costly a process, and not ideal especially for Joe, who may possibly be the sole surviving beneficiary and executor.
  • The second form of proof can be a Court Order. When the sole property in the estate is a parcel of real property, the estate’s personal representative can file a petition, pursuant to Article 19 of the Surrogate’s Court Procedure Act, seeking court approval to sell the parcel. Filing an Article 19 petition would theoretically save Joe from having to file for probate or administration. It would also save Joe from having to transfer the property to the name of the Estate. Joe would, in lieu thereof, just file a petition for sale. If the Court granted the petition, Joe could execute one deed conveying the property from his parent’s name to the purchaser.
  • The third way to satisfy the title company would be with an heirship affidavit. Under this method, Joe, or a disinterested person that Joe knows, would write an Affidavit to the title company stating that Joe is qualified to pass valid title. This may pose the most risk for a title company because the Affidavit, while notarized, is not backed by a Court of competent jurisdiction.

While all three options are technically valid, one should contact a title company to understand its preferred practices and whether the title company will be satisfied with a mere heirship affidavit, or whether, they will want something from the Court.

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.