The idea of opening an estate can be overwhelming, regardless of whether you are doing it on your own or have retained the services of a NYC estate lawyer. The type of proceeding you must undertake is determined by whether or not the decedent left a will. If there is a will, a probate petition must be filed with the Surrogate’s Court in the probate department. In which county you file the petition depends on where the decedent lived at the time of death. If the decedent lived in Brooklyn, but died in a New Jersey nursing home, the petition must be filed in the Kings County Surrogate’s Court. If the decedent died without leaving a will, an administration proceeding, rather than probate, must be commenced in Surrogate’s Court in the administration department.

In the first part, having a will makes it easy in that the executor is named in the document. There is no need to see if any family member is up to the task of opening an estate. In an administration proceeding (no will), family members who feel qualified to act will have to file an application to be officially appointed by the court. If more than one person is gunning for the job, the Court will have to decide who gets the position. If both candidates are equally qualified, they’ll have to agree to act as co-administrators for the estate. If parties cannot agree, the court will be inclined to cancel out their petitions and appoint a Public Administrator instead. Family members should always try to make amends for the estate’s sake and serve as co-administrators if given the choice. The parties who inherit from the estate is also determined by whether there is a will. In the case of no will, New York state law dictates the rightful heirs.

Dying with a Will

Here are the top four ways how dying with a will affects an estate:

(1)  No mystery as to the fiduciary – like it or hate it, being named in the will as the executor should be considered an honor. While challenging at times, the executor title is an in-demand job sought after by the rest of the beneficiaries. In practice, the simple one sentence nomination in the will can eliminate countless heated disputes among family members as to who gets to be in charge of administering the estate. Once funeral arrangements are finalized and the decedent is laid to rest, the nominated executor proceeds with the task of probating the will.

Takeaway point: appointing someone early on to be in charge of your estate eliminates the delay and expense of heirs agreeing to a candidate later on.

(2)  Straightforward distribution –  a well drafted will spells out the beneficiaries and any contingent beneficiaries, in the event that the primary beneficiary dies before the decedent. By looking at the will, you know exactly who inherits what and if anyone is disinherited. There is no need to examine estate statutes and codes to determine who the heirs are.

In most wills, the decedent leaves the surviving spouse the entire estate, and names the children as contingent beneficiaries. For example, Jason has his estate lawyer prepare a will which leaves his entire estate to his wife Janice. In the event that Janice should die before Jim, the will provides that his three adult children will inherit the estate in equal shares. Jason’s estate primarily consists of a home that he and his wife share. At his death Janice continues to live in the home.

But what if Jason died without leaving a will? Per New York law, Janice inherits $50,000 plus one-half of the estate. His three children inherit the remaining one-half of the estate. Splitting the estate amongst the spouse and the children is a simple task when the assets are liquid. Issues quickly arise when real property is at hand. It would not be uncommon for the children to force the sale of the house in order for the sale proceeds to be divided among the parties. The spouse would either have to join in the sale or buy out each heirs’ interest in the home.

Takeaway point: protect the people you love by implementing a will.

(3) Disinheriting power – with a will, you can disinherit any family member who you feel is not deserving of your estate. Consider the following instances: Are you separated from your spouse or going through a divorce? If you die before a divorce judgment is entered, your spouse inherits your estate. Is a money hungry nephew the only family member you have remaining? He’ll inherit your entire estate absent a will. Do you worry that your son will waste his inheritance on drugs or alcohol? He’ll take your estate outright if there is no will or trust limiting his inheritance. Does the idea of your siblings inheriting your estate make you cringe? If you are unmarried, have no children, and your parents have passed, your siblings will share in your estate.

Takeaway point: although entirely disinheriting your spouse can prove difficult under the laws of New York (see below), you are free to disinherit all other family members as you wish.

(4) Disinheriting your spouse – when someone dies without a will, their spouse automatically inherits the entire estate if there are no children. If the decedent did have children, the surviving spouse inherits $50,000 plus one-half of the estate. By dying with a will in place, you can limit your spouse’s inheritance to one-third of your estate. New York law provides that a surviving spouse has the option of taking what is left to them in the will (which could be nothing), or elect to receive one-third of the net estate. Consider three examples:

Jason and wife Janice have been separated for a few months with no hope of reconciliation. They have no children together and no children outside the marriage. Jason dies with a net worth of 1 million dollars. Janice inherits his entire estate.

Same fact pattern but Jason and Janice have two children. Janice inherits $525,000 (50,000 plus ½ of the estate (1,000,000 – 50,000 = 950,000/2 = 475,000)).

Jason’s will makes the minimum amount provision allowed under NY law for a spouse. As a result, Janice inherits $333,333.00 (1,000,000 / 3). If Jason’s will fails to mention Janice or provides her with less than one-third of his estate, she still has the power to take her minimum share under New York law. Whether a spouse decides to exercise his/her right depends on the individual situation.

Takeaway point- the only means to disinherit your spouse is by a will or a trust agreement.

Contact a NYC Estate Lawyer

Time and travel can be major obstacles for some. Most executors live outside of New York State and have limited time. Hiring a NYC estate attorney can save you money and time. An experienced NYC estate lawyer has already solved many of the problems that you may be trying to address. For example, lets say you want the sell the house of the estate but the other heirs object. Retaining an estate attorney typically accelerates the task by the filing of a motion ordering the parties to cooperate.

Whether you need assistance preparing your last will and testament or must honor the decedent’s wishes in their will, we can help. As estate lawyers in NYC, we focus our practice on estate planning, probate, administration, will contests, and elder law. If you or someone you know needs the services of an NYC estate lawyer call Mishiyeva Law at 646-233-0826.