The Trataros Law Firm

Probate & Estate Administration

 

FREQUENTLY ASKED QUESTIONS

Does probate administer all property of the deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.

Certain types of assets are what is called “non-probate assets” do not go through probate. These include:

  • Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.
  • Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
  • Life insurance policies.
  • Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
  • Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.

Do I get paid for serving as an Executor?

Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased estate. In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.

How much does probate cost? How long does it take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 2% to 7% of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.

Probate & Estate Administration

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Being the executor of an estate is a solemn duty and privilege, and at the same time can be a burden that distracts from what’s most important during times of grief: family, memories and the mourning process. We provide complete services and help executors fulfill their duties in a compassionate way.

When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased’s assets. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.

Every probate estate is unique, but most involve the following steps:

  • Locating, gathering and liquidating assets: All of the decedent’s assets are collected into estate assets. A valid death certificate and letters testamentary (proof of the executor’s authority to act on behalf of the estate) will be necessary to change title of the assets from the decedent to the estate. Some assets may be necessary to liquidate in order to pay debts of the decedents.
  • Notifying creditors and paying debts: All known creditors are notified of the administration of the decedent’s estate. Additional publications and notification requirements must be met to provide opportunity for unknown creditors to make claims against the estate. Any claim against the estate must be made within seven months of the end of probate (when the executor is given authority to commence with estate administration). The executor is responsible for reviewing claims and paying legitimate debts. Acting in the interests of the estate, the executor may need to dispute certain creditor claims in estate litigation.
  • Paying estate taxes and preparing estate tax returns: The final income tax return of the decedent is filed and applicable taxes are paid. If the value of the estate exceeds a certain amount, state or federal estate tax returns may also be required.
  • Distributing assets to the proper beneficiaries: Once all debts and taxes are paid, the remaining assets are distributed to the beneficiaries in accordance with the will or New York intestate laws (which name beneficiaries when there is not a will or when a will was rejected by the court).
  • Preparing for estate accountings and Releases to beneficiaries: Before the estate is closed, the executor prepares a final accounting of the estate. The final accounting informs the court and beneficiaries of all estate transactions, including assets collected, estate administration expenses and distributions made. At the close of the estate, the executor requests relief from duties as the executor and the estate is closed.