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Trust and Estate Law

Probating an Estate in Brooklyn Surrogate's Court
By Roman Aminov, Esq.

With the loss of a loved one, there are many important decisions that need to be made. Arranging the funeral, dealing with the burial, and eventually administering the estate are three of the major issues that the client may have to deal with. This article attempts to give a brief overview of the process of administering the estate.

If a New York resident passed away with an estate of over $30,000 (exclusive of exempt assets under EPTL 5-3.1) for the benefit of the surviving spouse or children under 21, and has a will, there are specific steps that must be taken before their estate can be distributed to their beneficiaries.

To begin the probate process, an estate attorney should be consulted to prepare a probate petition that asks the Surrogate's court to accept the last will and testament and to appoint a fiduciary of the estate. The fiduciary, also known as the executor, is named in the will and is responsible for marshalling and protecting the assets, paying the debts of the estate, and ultimately distributing the assets to the beneficiaries. The petition will need to include the original will along with a copy of the will, which is kept with the court. The estate attorney will also retain a copy for his records. In no event should the staples of the original will be removed, as that may be construed as tampering. If, for whatever reason, the staples were removed, an affidavit or affirmation explaining the situation should be produced.

The petition must also include a certified copy of the death certificate, which should have been obtained from the funeral home. It is generally advisable to tell the client to obtain 10-15 death certificates because each institution may require one, and it is much easier to get them in the beginning rather than ordering them afterwards.

The probate petition must list the names and addresses of all the distributees (See EPTL 4-1.1), i.e. the people who would be entitled to receive a share of the estate if there had been no will, even if they were not beneficiaries under the will. Generally, that means the decedent's spouse and children, if he had any. If he was not married and had no children, then his parents would need to be listed in the petition, followed by his siblings if the parents predeceased. The distributees need to be listed because they have to be given the right to contest the will. If they consent to the will being admitted to probate, and to the appointment of the fiduciary, they can sign a waiver and consent, which expedites the probate process. If they want to challenge the admittance of the will to probate, the probate lawyer will serve them with a citation that will give them the right to come in to Surrogate's Court on a certain day and request a SCPA 1404 examination, which is outside the scope of this article. They also have the right to have their own probate attorney appear in court instead of them. If your client receives either a waiver and consent or a citation, ask them to bring it to your office for review before they sign anything.

Assuming there are no challenges to the will, the court will admit the will to probate and appoint the executor of the will as the fiduciary of the estate. The executor may have to purchase a bond in order to protect the beneficiaries, but since virtually every will dispenses with the necessity of bond, the judge is likely to waive that requirement. The executor receives official papers from the court, known as letters testamentary, which gives them the right to act as the fiduciary. Keep in mind that certain courts, such as Kings County, have a backlog of files to review and submissions take up to two weeks just to be entered into the system.

After obtaining letters testamentary, the first order of business would be to obtain a federal tax identification number for the estate and open an estate account in which to deposit the proceeds of the estate. It is important to remember that both the federal and New York State estate tax returns are due 9 months after the date of death (Form 706 and ET-706, respectively). If the estate assets generated income for the estate, there may be an estate income tax return due (Form 1040). In addition, the executor is responsible for filing the decedent's final income tax return (Form 1040). As the attorney for the executor, you may work closely with a CPA to prepare the returns.

Six months after the appointment of a fiduciary, the court will require a report of the assets and inventory of the estate (Form 207.20), which will require the appraisal of the assets in the estate. Within nine months, any beneficiary has the right to disclaim any assets, which will then pass to the other beneficiaries as per the terms of the will. Finally, after all the debts and expenses are accounted for, including the executors' commissions, and all releases are signed, the assets can be distributed to the beneficiaries, and the estate can be closed upon the petition of the executor.

While administering an estate may be tedious and time consuming, it is also a sign of respect for the decedent to carry out his/her wishes.

Roman Aminov is a trusts and estates attorney concentrating in estate planning, elder law, and probate. He is experienced in the drafting of wills, powers of attorney, health care proxies, and trusts of all types. He can be reached at (347)766-2685 or http://www.aminovlaw.com.

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