Estate Administration & Probate

Goldfarb Abrandt & Salzman LLP attorneys represent fiduciaries in all aspects of Surrogate’s Court practice and the administration of decedents’ estates, including the probate of the decedent’s will, intestacy proceedings (where a person dies without a will), contested probates, turnover proceedings, and probate of lost wills.

We also represent fiduciaries (executors and administrators) and beneficiaries in kinship proceedings, postmortem estate and income tax planning, including disclaimer planning, representation in the sale of estate real property, and cooperative and condominium apartments.

Goldfarb Abrandt & Salzman LLP attorneys prepare federal and New York State estate tax returns and represent estates in estate tax audits. We also handle estate settlement agreements and fiduciary accountings for judicial and non judicial settlements.

The Duties Involved With Estate Administration

The deceased’s will should identify the person who will probate the estate, called the executor. The executor is tasked with finding the will and submitting it to the appropriate Surrogate Court. But the executor’s duties do not end there. Instead, executors must also:

  • Collect and safeguard estate assets
  • Obtain payments or other debts owed to the estate
  • Pay the estate’s bills
  • File tax returns and pay any taxes, if required
  • File an inventory of assets with the court
  • Defend the estate in any lawsuits
  • Distribute assets according to the terms of the will

These duties are rife with complications. For example, you might struggle to get a debtor to pay the estate now that the deceased has passed, or you might not know how to safeguard certain assets. The estate might have enough cash to pay back creditors. However, if the estate does not have enough cash, then you might need to liquidate certain assets to pay creditors—which means selling assets that some beneficiaries expected to inherit.

As an executor, you owe all beneficiaries a duty to act as a reasonable, prudent person. If you fail to meet this standard, the decedent’s survivors can hold you personally liable for any financial losses.

Because of the heavy burden of probate, many inexperienced executors seek out legal advice to handle one or more matters. For example, Goldfarb Abrandt & Salzman LLP’s experience includes:

  • Advising the executor about which creditors to pay off first and which creditor claims to reject
  • Identifying which assets to sell to cover debts and taxes
  • Advising how to properly safeguard property so that it does not diminish in value
  • Helping executors properly distribute assets legally
  • Filing the correct paperwork with the court

Fortunately, executors can use estate assets to pay for legal advice, so you should find an experienced probate attorney.

Will Contests

A probate court will give effect to a validly drafted will—even if heirs are unhappy with their inheritances, and even if they were cut out entirely from the will. Nevertheless, questions sometimes arise as to whether the will is valid, and an heir or beneficiary might file a will contest. The court will then need to hear evidence to determine whether to admit the will to probate.

For example, certain family members can challenge a will for the following reasons:

  • They may dispute whether the will is genuine.
  • A question might exist about whether the deceased lacked the mental capacity to make the will. For example, if the testator was sick or suffering from mental illness or dementia, that might invalidate the will.
  • Evidence emerges that the deceased was unduly influenced when drafting the will. For example, a caregiver might have bullied an elderly charge to sign everything over to him.
  • Someone alleges the will was procured by fraud. For example, someone might have asked the testator to sign a birthday card and then slipped a will in front of him.
  • A question exists about whether the will was revoked by a subsequent will.

Because the testator is no longer alive, will contests may turn on circumstantial evidence. For example, people who knew the testator can offer testimony about person’s state of mind at the time he created the will. The people who witnessed the will might also get called to testify. Doctors and other healthcare professionals might need to testify about the deceased’s physical and mental health.

A judge can order the following remedies in the event of a successful will contest:

  • Admit a prior will if a valid one exists
  • Admit only a portion of the will to probate and disregard the rest
  • Not admit any will, in which case New York’s intestacy laws will govern distribution of the deceased person’s assets

If you suspect that a will is invalid, or if you are a personal representative tasked with presenting the will to the court, consult a probate attorney for help analyzing your case. Will contests are complex and emotionally draining. Executors should not handle them on their own.

Trust Administration

A trustee’s duties will depend on the type of trust and the assets the trust owns. Generally, however, trustees perform many of the same duties as executors:

  • They create an inventory of the trust. The trustee must identify all assets owned. For example, some life insurance policies or other accounts might be payable to the trust upon death.
  • They have assets valued. You might need to pay taxes on the trust assets, so you will need to know what they are worth.
  • They provide notice to the people inheriting the assets. These are the beneficiaries.
  • They file tax returns with the state and federal government.
  • They distribute assets to beneficiaries. The trust itself might identify the method of transferring assets to beneficiaries.

Trustees owe a fiduciary duty to the beneficiaries, meaning that they must act in the beneficiaries’ best interests at all times. For example, trustees cannot benefit themselves by how they handle the trust assets, and they cannot make bad investments that cause the assets to depreciate. Beneficiaries can hold a trustee who fails at this duty financially responsible in court for any losses.

Although trust administration is in many ways simpler than probating a will, the process still contains traps for the unwary. Trustees and beneficiaries could benefit from the legal advice of an experienced trust attorney.

Speak With an Administration and Probate Lawyer in New York

The days and months following the death of a loved one are often difficult. In such sensitive times, you need an experienced administration and probate attorney in your corner. At Goldfarb Abrandt & Salzman LLP, we have decades of experience in New York’s Surrogate Courts, and we are pleased to extend our services to you. Schedule your consultation by calling (212) 387-8400 or write to us through our contact form.

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