The death of someone close to you typically triggers a period of denial, grief, and other strong emotions. Consequently, the last thing you likely want to think about if you recently lost a family member or close loved one is the legal process that is required to settle the decedent’s estate. You may, however, need to think about the legalities involved in your loved one’s death if you were named as the Executor of the estate in the decedent’s Last Will and Testament. As the Executor, your loved one has put you in charge of the administration of his/her estate. If your loved ones died without a Will, you might still find yourself in charge of administering the estate if you volunteer to be the Personal Representative (PR). Either way, retaining the services of an experienced New York estate planning attorney to assist you throughout the probate of the estate is a wise choice. To get you started, however, the estate planning attorneys at Law Offices of Kobrick & Moccia have compiled some commonly used probate resources for the Hauppauge, New York area.
Probate for the Beginner
If you are new to the probate process, it helps to learn a few basics before you get started with your duties and responsibilities as Executor or Personal Representative of the estate. Probate is the legal process that is typically required following the death of an individual. Probate is intended to serve several purposes, including providing a method by which estate assets are transferred to the new owners and ensuring that all debts of the decedent, including tax obligations, are paid before those assets are transferred out of the estate. The individual who oversees the probate of an estate is referred to as the Executor and is appointed by the decedent if a Last Will and Testament was executed prior to death. If the decedent died intestate, or without a Will, the law sets forth who has priority to administer the estate, usually first the spouse, if any, then the children. For the most part, the duties and responsibilities of an Executor and a PR are the same. For convenience sake, the generic term “Personal Representative (PR)” is frequently used to refer to either an Executor appointed in a Will or a PR who has been appointed for the position. For more general information on the probate process, the American Bar Association has a section entitled “The Probate Process” on its website that you may wish to read. In addition, you may wish to look at the “Probate” page on the New York State Unified Court System’s website for specific information about the probate process in New York.
Resources for the Pro Se Personal Representative
As a general rule, the probate of an estate occurs in the county wherein the decedent was a resident at the time of death. Therefore, if the decedent lived in Hauppauge, New York that probate will normally take place in Suffolk County Surrogate’s Court. Because probate often involved complex legal issues, most Personal Representatives (PRs) retain the services of an experienced estate planning attorney to assist during the probate process, particularly if the estate does not qualify for a small estate alternative to formal probate. Information on small estate administration can be found on the Surrogate Court’s website. If, however, you decide to proceed pro se, or without the assistance of an attorney, you will be expected to understand the applicable laws as well as the court rules and established procedures. For more information, navigate to the “Court System Basics” and “Court Case Basics” sections of the New York Court System’s website.
Finding the Right Attorney
If you have never before served as a PR, retaining the services of an experienced estate planning attorney is a wise choice. Not only can an attorney guide you through the process, allowing you to focus on grieving, but having an attorney on your side also dramatically decreases the possibility of making a costly mistake. A good place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is a national organization of attorneys who have chosen to focus their practice on legal issues related to wills, trusts, and estates. Membership in the AAEPA signifies that an attorney has proven experience in the areas of estate planning and/or elder law. The New York State Bar Association’s Lawyer Referral service and the Suffolk County Bar Association Lawyer Referral Service are additional resources that can help you find the right attorney.
Personal Representative Resources
The overall job of the Personal Representative is to oversee the probate of the decedent’s estate. To initiate that process you will need to file the appropriate petition with the Suffolk County Surrogate’s Court. Along with the Petition to Open Probate, you will also need to submit the original copy of the decedent’s Last Will and Testament along with a certified copy of the death certificate. You will find step-by-step instructions for how to obtain a certified copy of the death certificate on the New York Court’s website. Furthermore, you will likely need to conduct a thorough search to make sure you have identified all real property owned by the decedent. One place to check to ensure you have identified all real property is the Suffolk County Clerk’s online records search website.
Paying Federal Gift and Estate Taxes
Because every estate is potentially subject to federal gift and estate taxes, you will need to be familiar with how to calculate the tax and how to prepare the tax return. The Internal Revenue Service (IRS) website offers a general overview of the federal estate tax. They also have a “Frequently Asked Questions about Estate Tax” section that may be helpful. If it turns out that the estate does owe federal gift and estate taxes, any tax obligation due must be paid before any assets are transferred out of the estate. The State of New York is also one of a handful of states that impose a state level gift and estate tax. Information on New York’s estate tax obligation can be found on New York State Department of Taxation and Finance website.
If you have specific questions or concerns about the probate of an estate in Hauppauge, New York, contact an experienced estate planning attorney at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.