The Challenges of Probate & Administration
In New York state, when a person passes on with $50,000 or more of assets, the assets (estate) will NOT be distributed to intended heirs unless there is legal documentation as to who gets what, and the intent of the grantor (decedent) is clear. Typically, these documents are Wills and Trusts. Wills have to be “probated” i.e. they have to be submitted to the probate court (known as the Surrogate’s Court in New York) to be scrutinized for adherence to the law, after which a court order is issued to confirm the legitimacy of the Will. Until then, all assets remain undistributed. That said, when a Will exists, getting it through Probate is straightforward and generally does not take much time. If the decedent has less than $50,000 in assets, those claiming her estate still have to go through a legal/court process at the Surrogate’s Court — known as an a “Small Estate/ Voluntary Administration”. You now know why this area of law is called “Probate & Administration”.
The Perils of Not Having Instructions Laid Out – Intestacy Can Subvert Your True Intentions
What’s important to note is that if you have no estate planning document when you pass on, the courts – not you – decides who inherits what. This is known as dying “Intestate”. The Surrogate’s Court distributes assets according to Intestacy laws of the state, which typically contains rules of distribution by familial relationships. So, for example, if you’re married with two kids, your spouse will get half of your estate (assets) and your kids will get the other half. If you’re single, your parents and siblings will inherit from you. The bottom line is that when there is no legal estate planning document, the Court is left to exercise its discretion according to the law because you have left no indication as to who inherits what. Intestate court proceedings are time-consuming and can be expensive, depending on how complicated your estate is. Just getting a date for the case to be heard can be weeks, if not months, away.
You’re probably beginning to see the potential pitfalls of not having an estate plan. If you have children with your partner but are unmarried, your partner is NOT provided for according to Intestate laws. I’ve also come across scenarios where estranged siblings of a decedent who was single throughout her life inherited her estate. Worse, there are situations where the surviving spouse and children have no access to much-needed money for their daily expenses, including mortgage payments or rent. Certainly they will eventually be given such access, when the Surrogate’s Court has heard their petition for estate distribution. But until then, how are they to manage? Unless you already have money set aside in a joint bank account to ensure your loved ones can pay for all their expenses, dying intestate can have some truly serious consequences on the ones you leave behind. This is a precarious situation for loved ones, who are already emotionally distraught at the loss of their loved one. Last but not least, the situation gets even worse when there is litigation over the estate from competing parties.
Last but not least, those with minor children need Will, if only because any Guardianship choices for your children have legal weight only if it’s contained in the parents’ Will. For obvious reasons, if you’re a single parent with sole legal and physical custody of your children, you can’t afford not to have a Will. If you die without one, whoever wishes to take over care of the children will have to petition to the Surrogate’s Court. Which again, can be a long-drawn process as our courts take the issue of guardianship very seriously.
Thank you for your interest in our e-Guide. You can access it HERE. e-Guide on Estate Planning for Families
Our clients have found this guide useful helping them define their goals as regards inheritance and the protection of their children and spouse/partner. This e-Guide explains key estate planning concepts. It also details how powerful tools — such as Wills, Trusts, Guardianship and Advanced Directives — work to protect you. Single parents and single adults will also find this guide useful.
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