Estate Litigation and Probate
What are Estate Litigation, Probate, and Estate Administration?
Probate and Estate Administration begin after an individual is deceased and his or her estate is subject to distribution. When you have a will, it governs the distribution. When there is no will, the state mandates the distribution plan. Key participants in the estate may disagree. The executor or administrator, and beneficiaries or distributees may lead to Estate Litigation. Probate, Estate Administration, and Estate Litigation are complex. So, you need for interested parties to obtain experienced legal representation.
What is Probate?
Probate is the process of offering a last will and testament to the Surrogate’s court, as proof of the final wishes of the decedent. By contrast, a Probate Proceeding or Administration occurs when someone dies intestate (without a will.) We will look at both cases.
With a Will
If you have a will, in it you nominated an executor who ensures your final wishes, expressed in the will, are carried out. The Surrogate’s Court decides whether a will is valid (e.g. properly drafted, witnessed, and is the final will, if there were several), and whether the nominated executor is qualified to execute the will’s directives.
When the Surrogate’s Court determines a will is valid and the executor is qualified, the court issues “Letters Testamentary” to empower the executor to act.
Without a Will
When there is no will, a distributee, creditor, or any party interested in the estate can bring an Administration petition to the court. A spouse, sibling, or child might be an administrator. If necessary, the court will make the appointment. Upon qualification, the Surrogate’s Court issues “Letters of Administration”. Note that disagreement about who should be the administrator is a common cause of dispute among distributees.
Letters of Administration
Court-issued “Letters of Administration” empower the administrator to pay bills, liquidate assets, perform asset distribution, and similar functions.
Estate Administration, is the work of the administrator or executor, It means marshalling the assets of the decedent, paying associated debts, and distributing the remaining assets to beneficiaries or distributees.
Remember, the state writes the will if none is presented. For example, with no will present, the state generally mandates the wife receives half the remaining assets and the children receive the balance. Once the bills have been paid and the assets have been distributed, the estate is liquidated and no longer exists. The estate pays the attorney’s fees. The fee comes off the top of the asset pool so all beneficiaries or distributees bear the cost in proportion.
Uncontested Estate Administration
How would an Estate Administration attorney add value in an uncontested Estate Administration? Aside from ensuring the executor or administrator adheres to his or her fiduciary responsibility, there are many more tasks to accomplish in Estate Administration. Your attorney may
- Prepare the petition for probate or administration,
- Assist in opening the estate accounts,
- Obtain account identification and tax id numbers,
- Maintain the estate transaction record,
- Help selling the real estate to maximize its value,
- Calculate the executor or administrator’s commission,
- Calculate the beneficiaries shares of the estate,
- Prepare receipt and release and receipt agreements for beneficiaries or distributees to acknowledge they received their full asset distribution and waive rights to an accounting
- Prepare the inventory of the estate for the courts, so the court receives its correct fee.
- Note: The estate valuation estimate made at the start of Probate or Administration may change during Estate Administration. Accordingly, the court will refund excess or receive additional monies based on the ultimate asset value of the estate.
An experienced Estate Administration firm like Sheryll Law, P.C. makes uncontested Estate Administration proceed smoothly to conclusion.
Contested Estate Administration
There are at least as many ways for an Estate Administration to be contested as there are executors, beneficiaries, administrators, creditors and distributees of the estate. Here are just a few of the challenges that require expert legal representation.
In Administration, a frequent dispute arises over who should be the administrator.
For example, two siblings may contest over who should administer. The stated reasons for contesting are control of the estate distribution and garnering the administrator’s commission. However, rivalry among family members and other family issues are often at the root of the dispute.
Probate scenarios invite contesting over a wider range of issues.
- Determining which of several competing will was the last,
- Contesting a will alleged to have been written because of undue influence,
- Disputing the competency of the decedent when creating a will,
- Dueling wills naming different beneficiaries,
- Marriages occurring the last minute to obtain a portion of estate
In fact, there are myriad possibilities contesting wills and executor actions. How does an Estate Administration attorney help? They will represent beneficiaries trying to enforce their rights, people disinherited, or represent anyone’s interests in the proceedings. Here are two examples.
Representing an objectant and filing objections to the will.
Essentially a trial, known as a hearing in Surrogate’s Court, is forthcoming. The Surrogate’s Court will render its decision in that hearing.
Representing beneficiaries in an accounting proceeding, to examine what monies were paid out.
Often, beneficiaries do not understand why they receive an amount of money less than what they expected. Beneficiaries have the right to a full accounting, but it may be challenging to obtain without legal representation. Unfortunately, sometimes the executor or administrator acts wrongly. Examples include co-mingling fees and buying assets from the estate at fire sale prices. This can be the cause of problems and contested wills.
Three Good Tips on Probate and Estate Admin from Sheryll Law, P.C.
Be sure to try negotiating estate debts like credit card debt down. Sheryll Law, P.C. has had success in halving such debts, leaving more assets for the beneficiaries.
Executors or Administrators should maintain detailed records of all the transactions executed on behalf of the estate. They should never co-mingle the estates’ assets with their own assets.
Remember, the administration of an estate takes at least 7 months. There is a 7-month period in which creditors may come forward and make claims against the estate for debts. If the executor or administrator distributed the estate’s assets before 7 months and then a claim appeared, the executor or administrator would be personally liable for the claim and could not recover monies from the beneficiaries or distributees.
Sheryll Law, P.C. is the Right Probate and Estate Administration Firm for You
In uncontested proceedings, our years of practical experience, mean low-risk execution and correct resolution of the estate.
In contested proceedings, Sheryll Law, P.C. focuses on Surrogate’s Court litigation. We are at the Surrogate’s Court every week. Simply stated, it is what we do. With Sheryll Law, P.C., you have an experienced team who does this all day every day. That is why our office located close by the Surrogate’s Court in Riverhead, NY.
Get Legal Representation Early
For all roles in Estate Administration, time is of the essence for obtaining legal representation. Make certain you have experienced representation. This is a specialized and complex field.
Executors and Administrators – Take charge of the estate as soon as possible. Do not let things get out of hand. Sheryll Law, P.C. will be your ally.
Beneficiaries – If you have issues with the executor, get Sheryll Law, P.C. involved ASAP. Protect your rights and your share of the estate’s assets.
Will Contest Objectants – If you were omitted from the will, are an aggrieved beneficiary, or received court date and notice of hearing, you have only 20 days to object to the will. You definitely need legal support such as offered by Sheryll Law, P.C..
Risks and Rewards of Delaying Action
In Estate Administration time is of the essence. However, strategic delays may be an advantage. For example, if the estate has few assets and you believe there will be no distribution, you may want to let a creditor bring a probate proceeding instead of involving yourself.
Otherwise, Time is money. Depending on circumstances, delays may mean lost income and interest, damage to real estate that is not properly secured, and loss of “First “Mover “advantage. For those seeking to be the estate’s administrator, the first person who files has the advantage. Finally, if you are an executor who delays acting on the estate’s assets, the beneficiaries may sue you for loss of asset value.
If you have lost a loved one, believe you have been disinherited, or have been served with a citation to appear in Surrogate’s court, you need legal representation. Sheryll Law, P.C. is ready and able to help, so contact us immediately.
Real Life Example – A Contested Accounting Case
A father died intestate, causing a contested accounting case. His estate held three beachfront rental properties to be divided among seven siblings. The siblings’ intention was to sell the properties, but they could not agree on a sale price. In addition, one sibling was not receiving a portion of the rent from the properties but was being assessed for property-related expenses. This sibling sought legal representation.
An action for “Partition and Sale” and an “Accounting Petition” were filed in Surrogates Court to get the complainant sibling reimbursed for income and have expenses terminated. The “Partition and Sale” forced the sale of the property, and the client received her inheritance.
Sheryll Law, P.C. and Estate Administration
Sheryll Law, P.C. knows Probate, Estate Administration, and Estate Litigation backward and forwards. We are a presence at the Surrogate’s Court. In addition, the integration of Estate Administration with our Elder Law and Estate Planning practices means we have a global view of the entire set of practice areas. When you are faced with Estate Administration or Estate Litigation, look no further than Sheryll Law, P.C.. We are ready to represent your interests, regardless of your role in the estate.
The Time to Call Sheryll Law, P.C. is Now
There is no need to wonder whether your interests are protected in Probate, Estate Administration, or Estate Litigation. Contact Sheryll Law, P.C. nowand get the experience and skill that you need.