Frequently Asked Questions
What Types of Cases Are Heard in Probate Court?
The probate court deals with cases regarding:
- Estates and Trusts
- Protection of minors and incapacitated adults.
What Is Probate Litigation?
Probate litigation is when a legal dispute arises from a matter involving a trust, a decedent’s estate or an alleged incapacitated person.
Can You Appeal A Decision Made by The Surrogate Court?
Parties in probate (or Surrogate Court) litigation have the right to appeal a decision of the Court by filing a Notice of Appeal within the requisite time limits which are often very short.
What Is a Personal Representative?
A personal representative is the person appointed by the Surrogate Court to administer a deceased person’s estate. If the decedent left a Will, it is usually the person nominated in the Will to serve in this role who is called an executor. If there is no will (intestate), then the person to serve in this role is called an Administrator.
What Is the Personal Representative’s Job?
The personal representative is responsible for handling the assets of the deceased, arranging accounts, paying expenses (funeral bill, estate administration, medical bills, creditors, taxes, etc.), and then distributing the remaining assets. If the decedent left a Will, then the remaining assets will transfer as stated by the Will. If there is no will then the remaining assets will be distributed according to the laws of intestacy.
What Is a Trust?
A trust is a document that provides the rules that you want followed for property held in a trust for your beneficiaries (a person benefiting from a trust in some way). Trusts can protect your property, save on estate taxes, and help you avoid probate.
Why Would Someone Want to Set Up a Trust?
Common reasons are to reduce estate tax liability, to avoid Probate Court involvement after death, and to dictate how assets are to be managed if a person becomes incapacitated.
What Are the Reasons for Contesting a Will or Trust?
- The Will or Trust Agreement was revoked
- A later Will or restated Trust Amendment exists
- Coercion and undue influence
- Mental Incapacity
- Improper execution
Why Would Someone Contest an Accounting?
Contesting an accounting commonly occurs over why an accounting has not been provided, actions taken or not taken by the fiduciary as shown on the accounting, and whether the fiduciary has provided enough information on the accounting.
What Is Article 81 Of New York’s Mental Hygiene Law?
Article 81 of New York’s Mental Hygiene Law is focused on individual’s who were once competent, but have become debilitated from a cognitive or functional limitation, such as alzheimer’s and dementia. Article 81 may also be pursued for an intellectually disabled or developmentally disabled individual who may not fit into the requirements for a 17-A Guardianship.
What Does the Process of Obtaining Guardianship Include?
Once a petition is filed with the court, a hearing date is scheduled. During the hearing, the petitioner must provide convincing evidence that the incapacitated person is unable to manage their personal and/or financial affairs. Nominees of the incapacitated person, the petitioner, and family members are most often given preference when the court decides who should be guardian.
What Responsibilities Are the Guardian Given?
- A guardian can be given the authority to pay the bills for an incapacitated person.
- A guardian can be give the power necessary to prevent self-neglect
- A guardian can be given the authority to stop physical abuse
- A guardian can be authorized to engage in medical planning
- A guardian can be authorized to engage in tax planning
- A guardian must file regular reports with the court and visit the incapacitated person at least 4 times per year.
- Guardianship often lasts for the life of the incapacitated person.
What Is the Standard for Mental Capacity to Create a Will?
An individual must satisfy certain requirements to have sufficient mental capacity to make a will:
- They must be able to understand that he or she is providing for the disposition of his or her property after his or her death.
- They must be able to know the nature and extent of the property that he or she owns.
- They must be able to know the identity of his or her heirs.
- They must be able to generally understand the significance of signing the document.
These items are not necessarily all-inclusive and every case may have different facts and circumstances unique to that particular case. Will contests are often quite complex matters and detailed inquiry should be made of a licensed attorney to better understand what is needed for capacity to sign a will.
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Our firm has over 65-years collective experience in Estate and Trust law, our clients are assured they are being represented by a practice dedicated to protecting and pursuing the best legal outcome for their unique needs. Our estate planning attorney’s are also CPA’s, providing our clients with specialized expertise for complex estates.