Articles and audio on New York Probate

E196 What Happens If Someone Doesn’t Want Their Inheritance

Believe it or not, we have clients to do not wish to accept their inheritance. Although extremely rare, there is actually no legal obligation to accept, and it’s completely okay to decline. There are often situations where it is best.

In a recent case, our client “Evette” lost her long-time boyfriend. They were never legally married but were practically husband and wife. Everyone knew them as a couple, including their family and friends. In this case, Ed did not have a Will. As we have discussed previously, non-married spouses do not legally inherit from the deceased partner. Under the laws of New York, Ed’s biological adult daughter would receive 100% of his estate. The daughter, acknowledging that Evette was for all intents and purposes the spouse, has opted to include Evette in the estate distribution.

Disclaimer of Inheritance Rights

Disclaimer is a fancy word for not accepting and forfeiting your share of the inheritance. In Evette’s example, the daughter could simply say “I don’t want anything to do with it. I do not accept.”

Disclaimer of Inheritance Rights

The pro is that the daughter signs one form and she is done with the estate. No one will bother her again. If you are estranged, which isn’t the case here, that may be the best route. This option is the least hassle, but it removes all control.

The con is that if you forfeit, you no longer have a say in anything. The default inheritance laws would kick in and the share would go to the next in line. In this case, Ed still has brothers, and by law it would go to them, which is not what he wanted.

Can I Give My Inheritance to Someone Else?

Can I Give My Inheritance to Someone Else?

Sure, you can give your inheritance to someone else, but only once you receive it, which could be months or years after probate starts. The drawback is that there is much uncertainly. In this case, the daughter will be waiting for quite a while to receive the funds. In that time, she can simply change her mind about giving a share to Evette. Additionally, the daughter will need to stay involved in the probate process, whether she wants to or not.

Transferring an Inheritance by Executing an Assignment

In this case, an Assignment of Interest is the best option. Here, the daughter will sign a document agreeing to assign a percentage of her share to Evette.

Transferring an Inheritance by Executing an Assignment

Instead of waiting to see if the daughter will actually share the inheritance with the girlfriend, this this formality creates certainty and can help eliminate any issues that could arise between a family.

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E195 How to Sell a Deceased Person's House

E195 How to Sell A Deceased Person’s House

Quite often we are asked by family members and heirs what the process is to sell a deceased person’s home. It can be a complex and typically you should have a lawyer, but this blog shares a general understanding of how it works and what you can do to get started.

Did the Deceased Own Property?

While most people assume that the decedent owned their home, we have seen on many occasions that isn’t the case. For example, they may have been renting or owned the home jointly.

Did the Deceased Own Property?

The first thing you should do is look up the deed. This is actually easier than you think. Most counties have online searching capabilities, and a quick Google search will help you find the right place (the New York City system is called ACRIS). By pulling the deed, you will be able to confirm if the property was owned by the decedent, owned along with another person, or owned by someone else.

Two Names on Deed, One Person Dies

You may discovery that the decedent owned the property along with another person. If it’s a husband and wife, then you generally don’t need to do anything in terms of probate. The house will simply go to the wife.

Similarly, if it is a Joint Tennant deed, wherein two people are the joint owners. Using Jack and Jill for this example, then the house would be solely owned Jill if Jack dies, without having to go to probate court.

Lastly, the deed may say that Jack and Jill are the non-married owners or Tenants in Common. If that’s the case and Jack dies, then Jack’s estate still owns 50% of the property. You would have to go to probate court to deal with Jack’s half.

What Happens to House in Trust After Death?

Another scenario you may discover when you review the deed is that the house is owned by a trust. In this situation, you need a copy of Jack’s Trust to see what should happen to the property when he dies. You most likely can avoid probate court, depending on the trust wording.

Didn’t Own His Home

As we mentioned, it’s common for the person to not own their home at all. They could be a renter, be living in a home owned by a deceased grandparent, etc.

It’s important to pull the deed to figure out the ownership so you can move forward properly.

Do You Need Probate to Sell A House or Can You Sell a Deceased Person’s House Without Probate?

The short answer is yes, you can sell it without probate if the property was owned by a spouse or in a trust. However, if it’s in the decedent’s name alone, then you will need to go through the probate process.

Do You Need Probate to Sell A House?

PRO TIP: Some will try to tell you that technically you can sell without probate, with simply signing a document called an Affidavit of Heirship. Some fast-moving brokers may try to sell you on this idea. However, be aware that in most cases the title company may not accept it. The title company does not want the liability of ensuring that there are no issues with the estate and property. It’s too risky for them.

How to Get Access to House After Death

Another reason you may have to go through probate is to gain access to the house. In New York, if a decedent died at home, then the house is sealed with police tape. No one can enter the house until you have proof that you are entitled to be there. If the home is in a condo, co-op, or other managed building, they’ll want to see proof of authority before giving access. This proof comes from the court in the form of Letters of Testamentary.

Who Does Probate Protect?

Although you may think you want to avoid probate at all costs, that may not be the right concept. Probate is a process meant to protect you as an executor as well as the heirs. It safeguards all parties from being held liable for debts, such as the IRS and creditors that may come up down the road.

Considerations When Choosing an Executor

Specifically relating to selling a deceased person’s property, there are a few key points to keep in mind. See How to Choose an Executor, which digs deeper into how to choose an Executor.

Considerations When Choosing an Executor

Does Executor Have to Live in Same State?

Technically, no. You can be a US citizen and live outside of the state. But there are major drawbacks to not living in the state where the estate is probated.

Do I Have to Travel to New York for Probate?

Yes! Although as the executor it’s not technically required to live in New York, be aware that the executor will need to travel to New York. Typically, this is not just one trip. Even though we’re in 2020, some things still must be done in person, such as opening an estate bank account. So yes, living in New York is the best option.

When is an Estate Bond Required?

Bonds are sometimes required of the executor by the probate court. To get a bond, the executor will need excellent credit. When you are deicing about an executor, make sure it’s someone who will qualify. Those with financial issues and bankruptcies are not good candidates. They most likely will not get a bond.

How to Empty a House After a Death

When it comes to a deceased person’s home, not only do you have to empty the contents, but you may have to remove people that live there.

Eviction After Death of Owner

There are times that eviction may be necessary to remove a tenant. Commonly, once the owner dies, tenants feel they don’t need to pay, essentially living rent free. Therefore, eviction is necessary to be able to sell the home.
Eviction is a long process which takes on average 6 to 9 months. Therefore, you should get the ball rolling right away. If you wait for the tenants to do it on their own, you may add months or even years to the process.

Can an Heir Be Evicted?

Absolutely. Even if it’s family. While there are steps and complications, it can be done. And it may be necessary for it to be done.

Removing Items from House After Death

How to Empty a House After a Death

Lastly, you will need to clean out the items from the house, possibly disposing of the belongings. When serving as a professional executor, we take photos and videos of everything. After items are distributed according to the will, we send the photos to the heirs and ask what they would like. From there, we either have to find others that would like the items, donate them, or simply dispose of what is left.

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E191 3 Ways to Start Probate With No Upfront Fees

E191 3 Ways to Start Probate With No Upfront Fees


If you’ve done your research, you know that a good probate lawyer is not cheap. So how can you start your probate case even if you can’t pay now?

How much are probate attorney fees?

Lawyer fees for the simplest probate case start at $3,000. But probate is naturally messy, since is involves family, money, death, and high emotions.

So probate fees are usually more, sometimes tens of thousands of dollars!

source: https-::www.ft.com:content:14ea8e2a-0e47-11e7-a88c-50ba212dce4d

When to probate fees have to be paid?

Generally, lawyers require an upfront payment, or retainer, before starting work on your case. The upfront payment is usually a few thousand dollars, depending on the estimated total fees.

Many folks, understandably, just don’t have that money readily available, and ask “can probate fees be paid from the estate,” at the end?

Yes, but only under certain circumstance. Why? Because estates can be unpredictable, with many twists and turns. While you may feel certain that there’ll be plenty of funds to cover the lawyer fees, we’ve often seen:

  • Unexpected mortgages or debts
  • Unknown huge taxes due
  • Assets aren’t worth what you expected
  • Assets had a named beneficiary, and therefore not part of the estate

What to do if you can’t afford probate fees?

If you don’t have the cash on-hand to pay a lawyer’s retainer, here are some of your options to start your probate case now.

Deferred lawyer fee

Work with a lawyer who will accept a deferred fee (paid at the end, from the estate). If you’re able to find a lawyer to work with no upfront payment, expect some conditions.

For example, our office usually only accept deferred fee cases if you’ve also asked me to serve as your professional executor for the estate.

Contingent lawyer fee

Contingent fees are the ultimate “no win, no pay” arrangement. If your lawyer in unable to get your inheritance for you, then you don’t owe any fees. He only gets paid if he succeeds in getting your inheritance.

As you might expect, the trade-off is the fee will be higher than if you paid upfront: usually 1/3 of your recovered inheritance. But if you don’t have the cash to start your case otherwise, you’ll be glad this option even exists.

Contingent fee probate is limited to certain types of cases, such as:

  • Will contests
  • Proving kinship
  • Unknown assets

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E189 Can an Executor be Out-of-State?

E189 Can an Executor be Out-of-State?


No, it’s not a good idea to have an out-of-state executor. Although it’s technically legally allowed, in reality an out-of-state executor causes tons of problems.

Banking Problems

Opening the estate account

You probably think opening a bank account is a piece of cake. And you’d be right, if you were opening an account for yourself, personally.

bank kyc

But banking for an estate is a different animal. But an estate account has tougher “know your client” rules, and the executor often must meet with a banker in person, at a branch, to open an estate bank account.

Troubleshooting problems

When you have a problem with your personal bank account, these days you have limitless customer support options. Website, email, live chat, tweets, or call or walk in.

But with estates, you usually must walk into a branch and speak with a banker to get that missing statement or re-issue that 1099. And that can be a pain for an out-of-state executor.

Selling Real Estate

Clean out

Yes, cleaning out the home or apartment is part of the executor’s duties. For an out-of-state executor, this can mean several trips in and out of New York to supervise the clean out.

Closing

source: https-::www.c21redwood.rocks:blog:tag:highland-title

New York is one of the few states where most real estate closings are in-person, with all parties sitting around a table for a few hours.

Yes, it’s sometimes possible to close with an out-of-state executor by signing and FedEx-ing the documents. But if any problems popup (as they often do with estate sales), it’s better to close in-person, so the lawyers can troubleshoot any problems in realtime, and avoid an aborted closing.

Minor stuff (mail forward, etc.)

There are countless small executor tasks to get the home ready for sale. Forwarding the mail, small repairs, returning extra keys, conversations with the super, etc. All much easier to handle with a local, New York executor.

Travel restrictions

travel restrictions

Sometimes an executor simply cannot legally enter the US:

  • Unable to get a visa
  • Immigration problems
  • Quarantine or other travel restrictions

If any of these apply, the heirs may be better off hiring a New York professional executor, rather than a non-New York person.

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E182 3 Examples of How Co-Ops Are Worse (an Executor’s Perspective)

E182 3 Examples of How Co-Ops Are Worse (an Executor’s Perspective)


Most NYers know the deal with co-ops: they’s less expensive than condos, but they come with a lot of rules and headaches. Here are 3 real world examples:

  1. Last to unlock
  2. Quick to Sue
  3. Release of lien

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E180 Contingent Fee Probate

E180 Contingent Fee Probate


What do you do if you need a probate lawyer, but you don’t have the money now? Let’s talk about contingent fee probate.

  1. What are contingent fees?
  2. Some limitations
  3. Will contests
  4. Kinship
  5. Uncertain assets

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E175 Amateur Executor Bloopers

E175 Amateur Executor Bloopers


We’ll share a few real-world amateur executor bloopers (of course, anonymized to protect our clients’ privacy)

  1. Choosing a disappearing banker
  2. The case of the missing $10,000 check
  3. “Oh yeah, taxes!”

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How to Deal with Nightmare Tenants in Probate

E157 How to Deal with Nightmare Tenants in Probate


One bad tenant can blow up any real invest investment. Being a professional executor has shown me just how nightmarish a tenant can be.

We’ll discuss:

  1. Which estates have nightmare tenants?
  2. What are “nightmare tenants?”
  3. What to do about bad tenants?

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Why Does Probate Take So Long_ Tax Clearance

E155 Why Does Probate Take So Long? Tax Clearance


The second most common question about probate is: why does probate take so long? Lately, one of the biggest culprits is getting tax clearance.

We’ll discuss:

  1. Why tax clearance is so important
  2. Estate tax on the 1%
  3. The IRS and the Deceased’s 1040
  4. See you next April
  5. Don’t Forget form 5495!

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How to Avoid Rip Offs During Probate

E154 How to Avoid Rip Offs During Probate


So sad to watch when our clients get ripped off during probate. So we’re doing this episode to hopefully help you avoid getting taken.


We’ll cover:

  1. Examples of rip offs during probate
  2. Comparison shop
  3. Ask for referrals
  4. Choose an experienced probate attorney
  5. Hire an professional executor

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EXECUTOR. Thinking about hiring a professional executor for your loved one’s estate, or naming one in your will?

 

PROBATE, TRUSTS, ESTATES: Need a great attorney?

 

Send me a text message at 212-401-2990

Email me at executor (at) anthonyspark.com

Or visit https://anthonyspark.com

 

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