Surviving heirs of a decedent have certain rights under New York Probate Laws, including inheritance rights and rights to request a copy of the decedent’s will and a right to receive the estate accounting. Those and some of the other rights will be discussed in this post. Right to Contest the Will An heir who believes they have a right to inherit by law even if they have been omitted from a will, may contest the decedent’s will by filing a petition with the New York Surrogate’s Court and requesting a hearing on the matter. The person making the will contest must appear in at the hearing (in person or through their New York attorney) or they give up their rights to contest the decedent’s will under New York Probate Laws. However, if an heir agreed in writing to accept a lesser amount than is provided in the decedent’s will or under the New York Statutes, then the heir may not contest the will with regard to any right to inherit. Right to Challenge the Fiduciary’s Actions Heirs also have the right to request the court to remove an executor or personal representative if they suspect that person has breached a fiduciary duty or is incompetent to serve. An heir may have the right to be named as a successor executor or serve an as co-executor with the approval of the Court and other interested parties. Heirs may demand to see an accounting of the estate assets and distributions by making a written request to the New York Surrogate’s Court or to the personal representative. An heir may also request a special meeting or other information from the personal representative by making a written request. Since New York Probate Laws are complex, and there are many issues that may come up in a probate estate, it is recommended that a New York Probate Attorney be consulted to assist with the administration of the probate estate and distribution of assets to the heirs and other matters that may require legal assistance in connection with the winding up and settling of a New York probate estate. If you wish to speak to a New York estate attorney, call the Law Offices of Albert Gurevich at (212) 233-1233.
New York Estate Planning & Litigation Attorney
My name is Albert Gurevich – and I’m a New York Estate & Litigation Attorney. What that means is, I can help you set-up a plan for your golden years, protect your wealth utilizing trusts, and intervene on your behalf should a dispute arise in regards to an estate you’re involved with.
My team and I stand ready to provide exceptional legal representation and counsel, for every estate matter.
Here’s a quick overview of the estate legal matters I can assist with. And if you have a question, go ahead and type it in the search box to the right, or review the categories shown just below the search box. I might just have the answer you’re looking for right here. And if I don’t, please call me at 212-233-1233 for a free consultation.
NEW YORK ESTATE ADMINISTRATION AND PROBATE – We represent clients in New York estate administration and New York Probate proceedings. If your role is that of an administrator, an executor or a beneficiary, we will assist you to close out your administration or probate matter in New York Surrogate’s Court without unnecessary expenses and delays. We will work with you to defend the estate from unsubstantiated claims of creditors or disgruntled beneficiaries, if the need arises.
NEW YORK ESTATE LITIGATION – If litigation is the only alternative, we will fight hard for your part of the estate. This law firm will protect your rights in proceedings that deal with probate and administration of a New York estate. Whether you are involved in a will contest, distribution disagreement, spousal rights enforcement, compelling of the executor, will interpretation or other estate litigation, we can help you be successful.
Being the executor or administrator of an estate provides a terrific benefit in estate proceedings. This is why our first priority is to get you appointed the estate’s executor or administrator. But even if you are not a fiduciary, this firm still has a range of options to attain the results you want, such as compelling the fiduciary or conducting an accounting.
This law firm knows the New York courts, and our goal has always been to put you ahead of your opponents. In proceedings as varied as will contests, contested accountings and removing a fiduciary, our New York estate attorneys stand ready to bring out your best interest in estate litigation.
NEW YORK ESTATE PLANNING – Our law firm offers legal services in all aspects of estate planning. From a uncomplicated and tax-efficient will, to a difficult long-term estate plan, Albert Gurevich, Esq., law firm will work with you to achieve the most cost-effective and effective arrangement for the disposition of your estate.
If your family needs assistance with and Estate matter, please call me at 212-233-1233 for a free consultation.
It is the job of the executor or personal representative of a decedent’s estate to administer and wind up the decedent’s estate by filing a probate proceeding in the New York Surrogate’s Court. Part of the duties of the personal representative is notifying creditors of the decedent’s death, taking inventory of assets, investing and selling assets, paying creditor’s claims and estate taxes and distributing assets to beneficiaries. Each creditor must file a claim with the estate in order to get paid. If there is not enough money in the estate to pay claims, the personal representative will have to decide which creditors’ claims to pay. Since a personal representative can be held personally liable to the estate and the beneficiaries for paying invalid or excess claims, a personal representative will do well to seek legal advice from an experienced New York estate attorney before paying any claims or distributing assets to the beneficiaries. Priority of Claims Generally, the priority of paying probate claims in New York is as follows: • Funeral and burial expenses • Administration expenses and attorneys’ fees • Estate and personal taxes owed by the decedent • Medical bills relating to the decedent’s death or any illnesses resulting to the decedent’s death • Judgments • Secured debts such as mortgages or car loans • Unsecured debts such as credit card bills Distribution of Assets Under New York Probate Laws, beneficiaries will not be able to receive their distributions under the decedent’s will if there are not enough assets left to pay claims. All claims must be paid first. Neither the personal representative nor heirs or beneficiaries are liable for paying the claims and debts if there are not enough assets. Debtors may not try and collect the debt from the heirs or beneficiaries or the personal representative. The creditors must settle for whatever they can receive in payment from the estate. Some creditors may end up receiving nothing and have to write the debt off their books. When there is secured debt such as a home or other real property mortgage lien or a car loan, the creditor may foreclosure and take back the property. If there is a co-signer on the account, whether it is a secured or unsecured debt, the co-signer will be responsible for paying the debt. Since New York Probate matters especially those pertaining to insolvent estates can be complex, it is recommended that the estate hire a New York Probate Attorney to assist with the determination and validity of claims and the determination of liability of the decedent’s debts. If you wish to speak to a New York estate attorney, call the Law Offices of Albert Gurevich at (212) 233-1233.
What Happens if there are Not Enough Assets in the New York Estate?
It is the job of the executor or personal representative of a decedent’s estate to administer and wind up the decedent’s estate by filing a probate proceeding in the New York Surrogate’s Court. Part of the duties of the personal representative is notifying creditors of the decedent’s death, taking inventory of assets, investing and selling assets, paying creditor’s claims and estate taxes and distributing assets to beneficiaries. Each creditor must file a claim with the estate in order to get paid. If there is not enough money in the estate to pay claims, the personal representative will have to decide which creditors’ claims to pay. Since a personal representative can be held personally liable to the estate and the beneficiaries for paying invalid or excess claims, a personal representative will do well to seek legal advice from an experienced New York estate attorney before paying any claims or distributing assets to the beneficiaries.
Priority of Claims
Generally, the priority of paying probate claims in New York is as follows:
· Funeral and burial expenses
· Administration expenses and attorneys’ fees
· Estate and personal taxes owed by the decedent
· Medical bills relating to the decedent’s death or any illnesses resulting to the decedent’s death
· Judgments
· Secured debts such as mortgages or car loans
· Unsecured debts such as credit card bills
Distribution of Assets
Under New York Probate Laws, beneficiaries will not be able to receive their distributions under the decedent’s will if there are not enough assets left to pay claims. All claims must be paid first. Neither the personal representative nor heirs or beneficiaries are liable for paying the claims and debts if there are not enough assets. Debtors may not try and collect the debt from the heirs or beneficiaries or the personal representative. The creditors must settle for whatever they can receive in payment from the estate. Some creditors may end up receiving nothing and have to write the debt off their books. When there is secured debt such as a home or other real property mortgage lien or a car loan, the creditor may foreclosure and take back the property. If there is a co-signer on the account, whether it is a secured or unsecured debt, the co-signer will be responsible for paying the debt.
Since New York Probate matters especially those pertaining to insolvent estates can be complex, it is recommended that the estate hire a New York Probate Attorney to assist with the determination and validity of claims and the determination of liability of the decedent’s debts.
If you wish to speak to a New York estate attorney, call the Law Offices of Albert Gurevich at (212) 233-1233.
The executor or personal representative of a New York probate estate is responsible for notifying creditors of the decedent about the decedent’s death so that they can present a claim to the estate in a timely manner under New York Probate Laws. After the claim has been submitted and an accounting of the estate assets has been made by the personal representative, the personal representative must give each creditor a Notice of Allowance of Claim form advising the creditor of the approval or rejection of their claim in whole or in part and must state any valid reasons for denial. If after 90 days, a claim has not been approved, it is deemed to be rejected under New York Probate Law. The creditor may file a challenge to the claim with the New York Surrogate’s Court, and the Court has jurisdiction to rule on the matter by either denying the claim or approving it. Determining the Priority and Validity of Claims Priorities for paying claims and debts start with first making sure there is enough money for burial and funeral costs as well as for paying taxes, paying secured claims and paying unsecured creditors. Unless the decedent left a list of debts, it may not always be easy for the personal representative to determine all the creditors of the decedent. Or if there are not enough assets to pay unsecured debts, the personal representative may then have to decide what proportional amounts to pay to each creditor or may not be able to pay all creditors. If there is a mortgage or other secured property, the value of the real property will need to be determined, and the asset may need to be sold to pay off the secured debt. Insolvent Estates It is not unusual for a person to die insolvent (owing more debts than assets). Heirs may need to pay for funeral expenses out of their own pocket if the estate lacks the resources. When there are not enough assets, the beneficiaries will not be able to receive their distributions under the will either. A personal representative can be held liable by the heirs and beneficiaries of the estate for paying an invalid or incorrect claim. Therefore, the personal representative may want to seek legal assistance from a New York Probate Attorney in determining the validity of claims submitted by creditors and other interested parties to make sure the personal representative receives the proper advice and has a good understanding of how to pay creditor’s claims under New York Probate Laws. If you wish to speak to a New York estate attorney, call the Law Offices of Albert Gurevich at (212) 233-1233.
New York Surrogate's Court Fees are stated in the Surrogate's Court Procedure Act, § 2402. Here is the list of fees by procedure, for easy reference: 7. The fee schedule for subdivision 1 through 7 inclusive is as follows: Value of Estate or Subject Matter Fee Rate Less than $ 10,000 ......... $ 45.00 10,000 but under 20,000 ........ 75.00 20,000 but under 50,000 ........ 215.00 50,000 but under 100,000 ........ 280.00 100,000 but under 250,000 ....... 420.00 250,000 but under 500,000 ....... 625.00 500,000 and over .......... 1,250.00 8. (a) For filing a petition to commence the following proceedings, the fee shall be as indicated: SCPA Fee Rate 607 To punish respondent for contempt .... $ 30.00 711 Suspend, modify, revoke letters or remove a fiduciary other than a custodian or guardian ....... 75.00 711 Suspend, modify, revoke letters or remove a custodian or guardian ...... 30.00 715 Application of fiduciary to resign ..... 30.00 717 Suspend powers-fiduciary in war ..... 30.00 1401 Compel production of will ....... 20.00 1420 Construction of will ....... 75.00 1421 Determination of right of election .... 75.00 1502 Appointment of trustee ....... 45.00 1508 Release against state ........ 50.00 1703 Appointment of guardian ....... 20.00 2003 Open safe deposit box ........ 20.00 2102 Proceedings against a fiduciary ..... 20.00 2103 Proceedings by fiduciary to discover property .......... 75.00 2107 Advice and directions ........ 75.00 2108 Continue business ......... 45.00 2114 Review corporate trustee compensation .... 10.00 2205 Petition to compel fiduciary to account ... 30.00 EPTL 7-4.6 Appointment of successor custodian .... 20.00 (b) For filing a petition to commence a proceeding for the appointment of a trustee of a lifetime trust or for the appointment of a conservator, the fee shall be the same as that which is payable in the supreme court pursuant to section eight thousand eighteen of the civil practice law and rules. 9. For filing: Fee Rate (i) a demand for trial by jury in any proceeding, SCPA 502 ........ $ 150.00 (ii) objections to the probate of a will SCPA 1410 ... 150.00 (iii) a note of issue in any proceeding ..... 45.00 (iv) objection or answer in any action or proceeding other than probate ..... 75.00 (v) a will for safekeeping pursuant to section 2507 of this act except that the court in any county may reduce or dispense with such fee .. 45.00 (vi) a bond, including any additional bond: less than $ 10,000 ........ 20.00 $ 10,000 and over ......... 30.00 10. For furnishing a transcript of a decree .... $ 20.00 11. For a certificate of letters evidencing that the appointment of a fiduciary is still in full force and effect $ 6.00 12. (a) For making and certifying or comparing and certifying a copy of a will or any paper on file or recorded in his office: $ 6.00 pg. (b) Authenticating the same, additional: $ 20.00 13. For searching and certifying to any record for which search is made: $ 30.00 for under 25 years $ 90.00 for over 25 years 14. (a) For producing papers, documents, books of record on file in his office under a subpoena duces tecum, for use within the county where the office of the court is situated: $ 30.00 (b) for use in any other county, such fee to be paid for each day or part thereof that the messenger is detailed from the office and to be in addition to mileage fee and the necessary expenses of the messenger. The clerk of the court shall not be required to make any collection or return of the money so paid for expenses: $ .30 15. For recording: (a) any instrument, decree or other paper which is required by law to be recorded: $ 8.00 per pg. or part $ 16.00 minimum (b) for filing an authenticated copy of a foreign will: $ 8.00 per pg. $ 64.00 minimum (c)for taxing bill of costs: $ 15.00 If you need more information on New York estate proceedings, contact the Law Offices of Albert Gurevich at (212) 233-1233.
On occasion, a person may make more than one will in their lifetime when life changes occur such as a spouse’s death, divorce, remarriage, addition or deletion of an heir or other circumstances that may require a change. A person can either change a will by doing a codicil (amendment) or revoking their current will and making a new one. Either way, the most recent valid will is the one that will be accepted by New York Surrogate’s Court during the probate process. Validity of Will in New York A will is considered valid when it is made and attested in accordance with the laws of the State of New York or under the laws of another state or foreign country that may be recognized in New York. New York does not recognize handwritten wills (holographic) or nuncupative wills (unwritten), except those made by a person who is serving active duty in the military or a mariner at sea at the time the testator made the will. A valid will contains the following criteria: • Testator was at least 18 years of age • The will was signed and dated by the testator • Properly witnessed and attested • Made without coercion or under duress • Testator was of sound mind at the time of making the will Contest of a New York Will If a beneficiary or heir believes that a will was made under duress, coercion, the signature of the decedent was forged, or the decedent was mentally incapacitated at the time the decedent made their will, the beneficiary, heir or interested party to the will may contest the will by petitioning the Court. The Court will set the matter for hearing. The person contesting the will must show up to the hearing or they forfeit their right to contest the will and receive an inheritance. New York Spousal Rights New York law recognizes a spouse’s right to inherit under a decedent’s will even if the decedent intentionally left the spouse out of the will or provided for less than the surviving spouse’s statutory share. Under New York law, a surviving spouse can file a right of election within two years from the date of the decedent’s death with the Court. The Court will automatically award the surviving spouse either the statutory $50,000 or one-third of the estate’s value after paying taxes, claims and expenses, whichever amount is deemed greater. In order to avoid confusion about which will is valid, it is recommended that a person contact a New York Estate Attorney to help them amend or revoke their will so that their family and beneficiaries can inherit their rightful share of the decedent’s estate without having to incur unnecessary fees and costs to litigate the matter in Court. If you wish to speak to a New York estate attorney, call the Law Offices of Albert Gurevich at (212) 233-1233.
{ 13 comments… read them below or add one }
Hi. My wife in interested in obtaining a copy of her late Aunt’s will. I believe her Aunt died in the early or mid 90s and that her will was probated in Kings, New York or Nassau County. Her name was Miraim Tiech or Teich. Are you able to locate and obtain a copy of the will and if so, how much would your fee be for this? Thanks, Bill
Bill, feel free to give us a call at (212) 233-1233 to discuss.
Albert Gurevich, Esq.
Is there any way to contest property seized under survivorship? My friend’s grandmother bought a piece of property in the 30s that later turned into a resort area. When she died she left it to her two children, Martin and Theresa. Martin died leaving his “share” of the property to his only child. Theresa seized the property under survivorship basically pulling the rug out from under my friend. Can anything be done? It just doesn’t seem like that was what the law was intended for and Martin definitely didn’t intend for his sister to take it entirely.
My aunt passed away this past May at 95. She had no children. Many years ago, she asked if I would take care of her sister and my cousin would take care of her and that my cousin and I would share everything. Her sister died and I gave everything to my aunt as the will stated. I have since learned that my cousin told my recently deceased aunt that she would not take care of her unless she gave her “everything”. I have not seen the will, it has not gone to probate. My cousin is signing checks, etc. as “power of attorney”, yet no power of attorney is on file in Westchester. My cousin cared for my aunt who lived in Ossining by telephone as my cousin lives in SC. I saw her every other week, driving 50 miles one way to do so (for about 8 years), and when she had a stroke, I cared for her in my home. When my aunt was dying (over about 6 weeks) I was there holding her hand, my cousin was in SC. She tried to stop a blood transfussion claiming health care proxy, yet the hospital had none on file. There is more, but my question is, do I have a chance in getting something? I feel my aunt was forced in the making the will to my cousin’s benefit. I did receive a CD that was in my name for about $20,000. My aunts condo is worth about $350,000 and the previous deceased aunt, left $80,00 (that was left to me if her sister had died) and I believe there may be another $100,000.
I have no idea how to do that, sorry. If you figure it out, let me know and I’ll gladly remove you from receiving any further messages from this estate lawyer blog.
A.G.
to.whom it may concern my name is Estherb gonzalez I am a mother with two son I Have health problems i suffer from arthirtis gott pain in one of my toes i all suffer from a Elisey and illiness and high blood presure and high chrestlored i been trying to find someone to help with social security cause of my health problems i all so have problems with one of my legs i get water in my knees the doctor take out filuds out of my legs cause of chrociclod illiness and brocides in cause something happeness to me my sons will be takeing care of my adderess is 1502-mott avenue BuildingA APTA2B FAR ROCKAWAY, queens ny.11691 I DONT HAvE a home telephone number I HAVE A celler telephone 1-347-858-2364
Hi I am separated but not divorced yet. Is my husband allowed to change his will and leave his share of assets that are marital in joint names to someone else.?
He is allowed to change his will, but you may still be entitled to 1/3 of his estate. This is called “the New York spousal elective share” – the court will ignore his will for up to 1/3 of the estate. Of course that is true only while you are still married.
Mother In Law died. (1) House in a Trust with 2 of 3 brothers being the Trustees. When should the house be put up for sale by the Trustee’s, is there a time limit as holding costs are approx. 3K/month (2) The Will appoints 1 son as executor w/his wife as co-executor. One of the sons will Not sign the form the atty needs that appoints his brother as executor.(because his deceased mother left his wife’s name out of her will) The probate cannot start until the brother signs the consent form. The wife who was left out of the will has taken all her mother in laws jewerly for her daughters. I did not think anything of value could be taken without it beginning accountable to the beneficiaries. Please advise. Thank you.
Those are good questions. To answer #1, whether or not they need to sell the house, and if yes, when, will depend on the terms of the trust. To answer #2, a consent form is not necessary to start a probate proceeding in New York.
Albert Gurevich, Esq.
Hello,
My Name is Michal Fabrizio. My Father died last month unexpectedly. He was legally married for 21 years and had a will. In his will it states that in the event of his death all of his assets were to go to his wife and then upon her death split evenly between me and my two siblings….However, although not legally divorced, He and his “wife” did not live together for 2 yrs prior to his death and she was openly in another relationship. He wrote his will about 10 years ago when he and his wife were not separated. He owned 50% of his parents (my grandparents) condo in East Hampton (which is up for sale and was before his death), as well as the house my stepmother resides in. All together his assets are worth more than a million dollars…My siblings and I believe that due their relationship circumstances she should not collect on my grandparents (his parents) house because when he was alive she was well aware that he was not giving her any of that.
My question is: Do my siblings and I have a legal leg to stand on in regards to contesting his will even though they were not legally divorced before his death.
Thank you for your time.
There are many reasons for which a will may be susceptible to a challenge. See our . Some wills are not properly executed. The first thing to do is to show the will to a New York estate attorney, who will determine the best course of action. We usually begin my reserving objections to the will and conducting examination of witnesses to the will, the executor of the will, and the attorney draftsman, pursuant to NY SCPA 1404. If a long time passes since the will was executed, it may be possible that the witnesses cannot be found, which may make the will challenge easier.
Albert Gurevich, Esq.
Wondering if three grown sons in their 40s are the only surviving children of their mother who passed away this month. She lived in a housing projects in Brooklyn, NY with one of the sons, the youngest who never married. The second and third son’s joined the military out of high school and one is still active duty in VA, the other has since retired, but made the last military assignment on the west coast his home. In January, the oldest son on the west coast was telephoned to come to NY because his mother was in the hospital. He flew to care for her for about a week in her hospital private room. He returned home and about two weeks later, they get news she died. Nevertheless, everyone returns home from all over the US, funeral is held and the second son was appointed the POA during her life. He tells the oldest son that their mother left $32,000 but only to the two youngest, not to the oldest. He also is responsible for setting up the funeral arrangements/cremation and decides to keep her remains. QUESTION: Does the oldest son file Article 10/13 in Brooklyn Probate Court to ensure if a WILL is prepared or not, he is entitled to distribution? The second son in the AF is not disclosing very much and so their is uncertainty to whether there is an inheritance, or not? Understanding is that if the insurance policy lists benfeficiaries, and the will does not, this can all be contested in court. thoughts?