QUESTIONS & ANSWERS
A properly drafted estate plan is an important part of life planning for all people, not just the wealthy. It allows you to choose who benefits from your estate, how your assets will pass to your beneficiaries, the people who will be responsible for your assets and, if you have minor children, who will care for them if both parents are deceased.
Under New York law, a statute known as the intestacy statute will dictate the decisions that would otherwise be made by you. Based on an order of priority, your relatives will inherit your property and may petition the Surrogate’s court to administer your estate and become the guardian of your children. Please note that the intestacy statute does not include domestic partners, adopted children and potentially children born out of wedlock in the class of people who can inherit/control your assets.
Drafting an estate plan requires specific knowledge of the issues that must be addressed in an estate plan and the issues that may potentially come up during an estate administration. Even non-estate planning attorneys may not be properly well versed in this specialty to draft a complete estate plan.
Legal Zoom and similar websites do offer a limited amount of support from trained attorneys, but once the document is prepared, the customer is left without a resource to turn to if they have questions or need to make changes.
If a deceased person has a will, it is submitted to the New York Surrogate’s Court in the county where they lived at the time of their death. A probate proceeding is begun and the proponent of the will is issued authorizations known as letters testamentary once the will is confirmed to be valid and all necessary parties are notified. That person, known as the executor, will then collect the deceased person’s assets, pay all debts, expenses and taxes and distribute the remaining assets to the deceased person’s beneficiaries under the will.
If a deceased person does not have a will, the relative with the highest priority under the intestacy statute submits a petition to the Court. An administration proceeding is begun and upon approval of the court, the petitioner is granted letters of administration to handle the affairs of the estate.
Executors of estates and Trustees of trusts are considered fiduciaries to the beneficiaries they serve and owe certain duties to them. If one or more of these duties is breached, the beneficiaries can petition the Surrogate’s Court for relief in one or more proceedings available to them by the New York Surrogate’s Court Procedure Act.