Kamilla Mishiyeva, Esq., Founder of Mishiyeva Law, PLLC.

If a loved one has passed, chances are that you have called several probate lawyers in NY to figure out the first step in opening the estate and the costs associated with probating a will. As most people do have not past experience with after death estate matters, they are often surprised when they first hear of the costs of probate in NY. From the initial Surrogate’s filing fee to the process server fees, bond fees, appraisal fees, and legal fees, the final tab on administering an estate can end up in thousands of dollars, if not tens of thousands.

It is typically the case that most nominated executors in the will reside out-of-state, or that the proposed administrator (no will) is not a NY resident. When the fiduciary is not local, the retention of a NY estate lawyer is necessary in the administration of the estate. Even when the fiduciary is a local NY resident, the assistance of an estate lawyer is essential if the estate involves a contest, dispute among beneficiaries or heirs, substantial amount of assets, or a complicated fact pattern.

Averting and Resolving Conflict Early On

A last will and testament of the deceased that is unambiguous, detailed and specific has the ability to eliminate a great deal of potential conflict among the beneficiaries and any disinherited heirs. The choice of an executor or administrator is also very important in reducing the possibility of a conflict. Although there’s not much that can be done when the decedent names an executor in his or her will, the task is up for grabs when the decedent leaves no will upon his or her death. For most, it’s best to have a surviving spouse or another family member act as the administrator of the estate. However, interweaving familial relationships can also carry unavoidable emotional baggage, which mixed with money matters and control issues of how the assets should be administered is doomed for disaster. When the potential for conflict is apparent, consult with a NY estate attorney who has administered numerous estates before appointing an administrator.

Once a petition for probate or administration has been filed in Surrogate’s Court, and an executor or administrator has been appointed, conflict can best be contained by communication. Keeping an open line of communication between the executor and the beneficiaries can prevent and resolve conflict early on. To put it simply, the beneficiaries are more likely to trust the executor if he or she is transparent regarding the actions taken on behalf of the estate. To illustrate an example, although the executor has the fiduciary duty to sell the property of the estate for a fair market value price, she does not have the obligation to gather the consent of the beneficiaries before the sale. However, informing the beneficiaries of the listing price and ultimately the selling price, allows the beneficiaries to gain confidence in the executor and makes them feel involved. There are many times that our office receives phone calls from disgruntled beneficiaries complaining that the executor is keeping them in the dark on the affairs of the estate. Tens of hours in billable legal fees later, the state of the estate is the same state that could have been revealed to the beneficiaries by a simple phone call or email.

In a perfect probate world, the executor acts prudently and in the best interests of the beneficiaries, and in return the beneficiaries are thankful to the fiduciary for his or her services and make only reasonable requests from the executor. In reality, however, this relationship between the parties is often immersed with tension. If a beneficiary is concerned about the executor’s actions or motivations, an in-person meeting can often resolve the conflict. The conflict can easily be defused once the executor clarifies some of her actions. Although the beneficiaries may not agree with the executor’s judgment, they may be more willing to not challenge it if they understand the reasoning behind some of the decision.

Litigating Probate Differences

Litigating issues in Surrogate’s Court can be both financially and emotionally draining. If direct communication between the executor and the beneficiaries fails to lead to results, or the executor refuses to communicate with the beneficiaries, another means to have conflicts resolved is by mediation. Mediation, which is typically faster and less expensive than litigation, involves an impartial third party who helps the executor and the beneficiaries come up with potential solutions to disputes. However, the filing of an action may be a better option next to mediation if there is an ongoing tension which the deceased’s death and subsequent estate filing has heightened.

Issues that arise during the administration of an estate are hard to overcome because the individual who executed the will or owned the property is no longer alive to express their intentions. Sometimes litigating probate issues is the only way to address some matters. It may also be the case that the executor or the beneficiary may simply want the Surrogate’s Court to rule on who is “right” on a certain issue and may be reluctant to come to terms without judicial intervention. Litigating a dispute may also be the only means to an end if there is a disproportion of power between the parties, making it challenging to achieve a fair result outside of court.

Contact an Estate Lawyer in NY

Whether you are facing an accounting dispute or a breach of fiduciary by the executor or administrator of the estate, you need expert advice to help you recognize your rights. No matter the size of the estate, it’s always recommended to seek the assistance of a probate lawyer in NY before its too late. For candid and tailored advice, contact the estate planning and probate attorneys at Mishiyeva Law, PLLC., at 646-233-0826 to schedule a consultation at our downtown Manhattan location. If your goal is to minimize future costs associated with probate, reduce estate taxes, contest the actions of a fiduciary, or administer a NY estate, we are happy to assist.