When you imagine an estate planning attorney you likely think about someone who will meet with you to discuss your family’s needs and desires regarding what should happen to your property when you die. This attorney may also discuss care and living arrangements for your minor children. They will draft your advance directives (power of attorney, health care proxy, and living will), your will, and any trusts you may require, send you draft documents to review, and then meet with you to address any questions and ultimately execute the documents. While many estate planning lawyers do practice estate law, it is important to note that “estate law” and “estate planning” involve different tasks. Estate planning involves the drafting and execution of estate planning documents like wills and trusts. Estate lawyers help clients deal with the assets of a decedent after death and typically also work in Surrogate’s Court during the probate or estate administration process and sometimes defend against will challenges.
Probate is the process by which your will is admitted to the Surrogate’s Court, formally recognized as valid, and an executor is appointed. If there is no will, an estate attorney helps the next of kin to be appointed the administrator of the estate. While an Executor or administrator is not required to hire an estate lawyer, in all but the simplest cases, it is wise to do so. Being advised by a professional familiar with the New York Surrogate’s Court and the estate process will make the personal representative’s job go much more smoothly. Throughout the probate and administration process the probate attorney (also known as an estate attorney) will assist the executor with a multitude of tasks including but not limited to:
- Marshaling the assets of the decedent;
- Determining the date of death value of those assets;
- Drafting and filing the probate petition and necessary affidavits, completing waivers and service of process on necessary parties;
- Obtaining any required bonds;
- Opening an estate account;
- Guiding the Executor through the payment of the decedent’s debts;
- Re-titling unsold property in the name of beneficiaries;
- Filing any income tax returns or estate tax returns (if applicable);
- Distributing the balance of the estate account to the beneficiaries in accordance with the will’s provisions; and
- Filing an accounting with the court and settling the estate.
Despite the best attempts at planning an estate so that the probate and distribution of assets goes smoothly, sometimes conflicts between beneficiaries and distributees do arise after the decedent’s death and a will or trust is challenged in court. This is an unfortunate situation that can result in damaged or ruined relationships and a waste of estate assets on legal fees. It happens most commonly when a family member who is expecting to inherit under the will or trust is either cut out entirely or receives less than they would have if the decedent had died with no will at all. An estate lawyer who practices in the area of estate litigation can help an executor or beneficiary defend against the will challenge.
If you need the assistance of an experienced estate attorney, call the Law Offices of Roman Aminov, P.C. at 347-766-2685 to discuss your matter. Whether you are looking to draft estate planning documents for the first time, you are looking for assistance probating a loved one’s will or you are concerned about a possible will challenge, we are here to advise and assist.
This article is for educational purposes only - to provide you with general information, not to provide specific legal advice. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed attorney in your state.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice from Roman Aminov. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed local estate attorney in NY or your state.
