ESTATES / PROBATE

WILLS TRUSTS AND OTHER DOCUMENTS

Mc Carthy & Modelewski provides their clients with guidance on estate planning, trust administration, and the probate process.  Along with the preparation and execution of a Will, many people choose to make important decisions about themselves and their families through the use of other legal documents.  The firm has experience in preparing supplemental needs trusts, family trusts, and generation-skipping trusts, which, depending on circumstances, can preserve and protect assets.  If you require a health care proxy, living will or guardianship agreement, it will be properly prepared and executed.  We have assisted clients with claims against estates, and have engaged in litigation of disputed estate matters before the Surrogate's Court.

ESTATE ADMINISTRATION

New York has probate in "solemn" form, which is a less cumbersome and costly process than that found in other jurisdictions.  The administration in New York State of a decedent's estate includes, for a case where the decedent died with a Will, petitioning the Surrogate's Court for the probate (meaning  "proving" or "to prove") of the Will and the appointment of an executor to carry out the terms of the Will.  When a decedent who dies without a Will ("intestate"), it is necessary to petition the Surrogate's Court for the appointment of an administrator of the estate.  In either case, the law looks to a responsible person to either distribute assets according to Will, or according to the law of descent and distribution.   "Fiduciary" is the term which applies to either the executor or the administrator.  The Fiduciary must carry out certain functions including marshaling and preserving estate assets; determining the cash requirements of the estate and liquidating assets to satisfy such requirements; preparing and filing an inventory of assets with the Surrogate's Court; preparing and filing any necessary tax returns; preparing and obtaining settlement of the executor's or administrator's accounting; and distributing estate assets either according to the terms of the Will, or, in an intestate estate, according to the laws of descent and distribution.

The administration of decedents' estates in New York is governed by the Estates, Powers and Trusts Law (EPTL), the substantive law of trusts and estates, and the Surrogate's Court Procedure Act (SCPA), the procedural rules and proceedings before the Surrogate's Courts.

JURISDICTION OF THE SURROGATE'S COURT

The Surrogate's Court has jurisdiction over all matters relating to decedents' estates. The proper place for a probate or administration proceeding is the county in which the decedent lived at the time of death. A Will remains without effect until it is "proved" or "probated" by the Surrogate's Court as the decedent's last Will. Only a valid Will can legally pass real and personal property.  It must be proven that the Will was duly executed under the law; that the person making the Will was in all respects competent, and not under any duress; and that the Will itself is beyond suspicion in terms of its originality.