Every child has a biological father, but, in the state of New York, a child born to an unmarried mother has no legal father. Unmarried parents must establish paternity (a legal term for fatherhood) in one of two ways:
1. By signing a form acknowledging paternity
2. By petitioning a court to determine paternity
Even if you signed an acknowledgment of paternity form at the time your child was born, there are things you can do to challenge paternity if you believe you may not actually be the child’s biological father. A paternity attorney may be able to help. Read on to learn more.
What Legal Paternity Means for Fathers
Legal paternity means your name will appear on the child’s birth certificate and you are responsible for providing the child with certain benefits, including:
• Financial support (child support, social security, veterans benefits, and inheritance rights)
• Your name on the birth certificate
• Medical or life insurance (from either parent if available)
• Access to information about your genetic and family history so the child can learn of any inheritable medical problems
If you’re deemed the legal father of a child, you also have certain responsibilities to the mother of the child, including shared parental responsibility and financial support.
Who Can Petition for Paternity?
The state of New York allows the following individuals to petition the court to determine paternity:
• The mother
• The person alleging to be the father
• The child
• The child’s guardian, next of kin, or another person acting in a parental role
• A representative of a public welfare agency
• A representative of a charitable or philanthropic organization
Determining Paternity: Then and Now
Before DNA testing became available, the only way to determine paternity was with blood type. Although blood testing has become more sophisticated over time, it is not a perfect science and has limitations for accurately determining paternity.
Today, DNA tests can determine whether a man is a child’s father with almost 100% accuracy. All it takes is a simple swab of the cheek.
While DNA testing kits are available over the counter in many pharmacies, New York state requires DNA tests to be ordered by a court or medical professional to establish legal paternity.
Grounds for Challenging Paternity
Medical tests to determine paternity are usually accurate, but not always. The situations below are grounds for challenging paternity:
• Tainted lab results (evidence of errors in lab results or a lab that has a history of substandard practices)
• Proof of infertility or sterility
• Proof that test results were tampered with
• Proof of the mother’s infidelity during the marriage (when an opposite-sex couple is married, the man is presumed to be the father unless otherwise proven)
How to Challenge Paternity
Section 516-a of New York’s Family Court Act allows a person to rescind an acknowledgment of paternity within 60 days of the date the acknowledgment became effective, or within 60 days of an administrative or judicial proceeding relating to the child.
If you signed an acknowledgment of paternity more than 60 days ago, you still may be able to challenge it if any of the following apply:
• New facts: New information has come to light indicating you may not be the father.
• Duress: You signed the acknowledgment of paternity under duress (e.g., threats of violence).
• Fraud: There is evidence of fraud.
The first step is usually to file a complaint with the court. The court may then order tests, including blood and DNA tests for you and the child. They may also seek evidence, such as medical documents, to determine paternity.
Once the court has reviewed all the evidence, it will issue an order naming the legal father. The parents must then work out issues around child support and custody.
What About Same-Sex Couples?
In same-sex parenting situations where the parents were not married when the mother became pregnant or when the child was born, it’s important to establish parentage.
In New York, it used to be that if a same-sex couple separated, a non-biological parent had no legal rights of parentage after the breakup.
This changed in 2016 when the New York State Court of Appeals ruled that the same-sex partner of a child’s biological parent should be legally recognized as a parent, even in cases where the couple was not married and the non-biological parent did not adopt the child.
This decision overturned a 25-year precedent that previously left same-sex parents with no recourse to visit or gain custody of their child after a breakup.
Get Help Legally Challenging Paternity
The stakes are high. If you’re established as a legal parent of a child, by law you must financially support the child.
The laws on paternity and parentage can be complicated. Considering the enormous amount of responsibility that comes with being a legal parent, you deserve a fair process to determine paternity. A skilled paternity attorney can help you understand whether you have a case to challenge paternity and help you resolve child custody issues.
The law offices of Joseph A. Ledwidge PC have a track record of success helping clients challenge paternity and resolve joint custody and child support issues. We start by listening, and then we develop a legal strategy to fully meet your needs.
Whether you need a child support lawyer, child custody lawyer, or just an experienced family attorney in Queens, Manhattan, and throughout NYC, schedule a free phone consultation at 718-276-6656 today.
The thought of being emancipated from one’s parents can seem appealing to many teenagers. The growing pains associated with becoming a young adult can often lead to family disputes where the teen’s and parents’ objectives do not coincide with each other.
For instance, parents might have specific rules the teen must follow. However, the teen feels they should be allowed more freedom to do what they want when they want, and to not be held to any specific household rules.
Before you think getting emancipated will solve all the issues with your family, you need to make sure you understand exactly what emancipation entails. Once emancipated, the teen must be able to financially support all aspects of their life, including but not limited to:
• Health Care
• Health Insurance
• Utility Bills
In addition, the teen will have to work full-time to cover these living expenses. They may also still have to attend school.
Most teens do not fully think about the financial impacts emancipation will have on their lives. They can also overlook other legal aspects—like they can be held responsible for any contracts they sign and can be sued.
Emancipation of Minors Process in New York
Unlike other states which have an emancipation of minors process or statute, there is not one in New York. Emancipation typically occurs in New York during another court procedure, such as a child support hearing, custody hearing, or general family court petition.
New York requires parents and legal guardians to support minors until they turn 21. Once they turn 21, New York recognizes they are emancipated. Prior to turning 21, there are some other situations where the state can recognize emancipation, as follows:
• The minor gets legally married.
• The minor joins the military.
• The minor is 18 years or older and works a full-time job.
• The minor has completed a 4-year college degree before their 21st birthday.
Courts, on the other hand, can decide a minor is emancipated if they meet the following conditions and there is a valid reason for emancipation:
• The teen is 16 years or older.
• The teen has a full-time job they work year-round.
• The teen fully supports themselves without any financial support from the parents.
• The parents have no control over the teen.
• The teen is not in the foster care system.
• The teen lives apart from their parents.
Rights of Emancipated Minors in New York
If the court finds a minor to be emancipated, then the minor has specific legal rights as follows:
• The teen can reside in their own home.
• The teen can go to school in the neighborhood where they live.
• The teen is allowed to keep all of their earnings from their full-time job.
• The teen can request child support from their parents if the parents were responsible for the teen leaving home.
• The teen can apply for and receive certain public assistance benefits.
However, emancipation is not viewed as permanent in New York. If the teen’s situation changes, parents can still be held responsible to support the child until they turn 21.
While emancipation may seem appealing to many teens, it is not a process that should be taken lightly. There are valid reasons why a teen might want to become emancipated.
Family law encompasses many subjects, all dealing with domestic relationships and the children born as a result of these relationships. When family matters must enter a courtroom to be resolved, family law is what governs which procedures, regulations, and rules apply. This breakdown of them will offer some clarity if you need legal assistance for a domestic matter.
Family law can apply even before a couple enters into a marriage or another domestic partnership. A prenuptial agreement signed by both partners legally clarifies the financial intentions of each party. This offers financial protection to each party in the event of a future separation or divorce.
Marriage, Other Unions, and Property
Marriage falls under the topic of family law. However, living together also falls under this category. Depending on the state you live in, same-sex unions will also come under the family law designation.
Should a marriage or other union deteriorate and you find yourself filing for divorce or getting an annulment, this will also be a family matter. Property acquired during the marriage, as well as alimony payments, will need to be settled fairly, and these issues are addressed in court if the parties cannot reach a settlement otherwise.
Along with domestic partnerships, children are also part of family law. Couples who wish to adopt children or who have children via surrogacy will need to adhere to family law regulations. The protection of children against neglect and abuse, as well as matters relating to juvenile offenses and their adjudication, is also included here.
Reproductive rights and the paternity of a child are both subjects of family law. The custody agreement and visitation are typically sorted in a courtroom setting, and visitation may or may not require supervision, depending on the circumstances of the parental relationship. This is also true when documents relating to these matters must be modified.
Monetary Matters Related to Children
When a couple’s domestic union dissolves, the parent with custody is entitled to child support payments, which are determined in family court. These payments are meant to help the parent meet those financial obligations related to caring for the child.
The Rights of Family Members
The direct relatives of parents, as well as the parents themselves, all have certain rights with regard to the children of dissolved unions. Family law helps ensure these rights are protected and adequately represented in court.
Family Law Is Complex
Every case has its own specific circumstances and challenges that require expert knowledge to resolve. A separation from spouse requires the rights of each party in a family law case to be supported to the fullest extent, property to be fairly divided, and the amount of support received to be fair for all parties.
The attorneys at Joseph A. Ledwidge PC possess a combined 32 years of expertise in family law. We are prepared to represent clients for all family law matters, from alimony to visitations. Your result matters; get in touch today for a free consultation from a family law attorney.
A loved one’s death is a significant loss that, if you are
responsible in some way for their wills
and estates, can also leave you with the job of sorting out their
final accounts. Many have discovered debts in their loved one’s name, which
need to be repaid. Yet who
is responsible for a deceased person’s debt? You might be surprised to
learn that there is more than one answer.
What Is an Estate, and Why Is It Important?
An estate comprises everything of value that a person owns
at the time they pass away. Generally speaking, any bills left behind after a
loved one’s death must be paid from their estate. This can be done by selling
their assets to raise money for the debts or be as simple as writing creditors
a check from their bank account. What’s left after these payments can then be
distributed via the probate process.
If there isn’t enough in a person’s estate to cover their
debts, it may simply be that creditors don’t get paid. However, this only
applies to certain kinds of debt. Other kinds can end up the responsibility of
family members. Let’s take a closer look at these different debt types and what debts are forgiven at death.
Money Owed on Credit Cards
If your loved one has a balance pending on one or more
credit cards and had a joint account with someone, that person will have to pay
the debt. However, should there be no assets left in a loved one’s estate to
pay these bills, creditors will not receive any money. This is because credit
card debt is unsecured, meaning that the lender has no rights to claim assets
for the purpose of debt repayment.
However, there are many ways around this. For example, a
credit card company can send your loved one’s account to a collection agency,
which may hound you with phone calls to try to get you to pay them. As well,
they can order a lien to be placed on your loved one’s assets until you pay
them, which can make it impossible for you to pay any other debts.
A credit card company may also try to sue you for the money
owed, which can lead to garnished wages.
Money Owed on a Mortgage
If your loved one co-owned
their home with another person, or if the house will be inherited by a specific
individual, the co-owner or devisee (a person
to whom real estate is left by the terms of a will) will be responsible
for the remainder of the mortgage payments. In the event that your loved one
was the only one who owned the home, their estate is responsible for paying
this secured debt.
Money Owed on Home Equity Loans
Another secured debt, an outstanding amount left on a home
equity loan must be repaid. If the lender wants the full amount owing right
away, the house may have to be sold if there are insufficient funds in the
estate. However, anyone who is inheriting the home can ask the lender about the
possibility of taking responsibility for these payments.
Money Owed on a Vehicle
If you are responsible for your loved one’s estate, you will
have to pay any outstanding car loans from that estate if there are sufficient
funds to do so. Like mortgages, car loans are secured debts. That being said,
if the loan cannot be paid for, the asset—which is the vehicle—becomes the
collateral and can thus be seized following the placement of a lien on it by
Should a friend or family member inherit the vehicle, it
will be their responsibility to continue paying the loan. Otherwise, they run
the same risk of repossession.
Other Loans that Are Owed
If your loved one had a student loan that was granted
privately from a family member, that debt should be repaid by their estate.
Once again, if there was joint ownership of the loan via a co-signer, then the
co-signer is responsible. As well, because student loans are unsecured, a
lender may have no choice but to go unpaid. As far as what debts are forgiven at death, other
lenders may dissolve loans immediately following notification that the person
has passed away.
Common Issues That Are Completely Avoidable
There are many things that can go awry when trying to settle
a loved one’s outstanding debts, even if they obtained estate planning
services. However, none of these is impossible to rectify.
Pay Old Debts First
Before accepting any money, beneficiaries must pay any old
or outstanding debts left by their loved one. In some cases, a beneficiary can
be faced with some unwelcome surprises in the form of hidden debts.
In New York State, it is assumed that creditors will do
their due diligence to collect money owed, so it is not mandatory to post a
notice to creditors in your local newspaper. The statute of limitations on debt after death states
that creditors have six years from the date an executor was appointed to make
their claim.1 Creditors who don’t do so have their claims rendered
Never Speak to Creditors
Another common issue has to do with speaking to creditors or
collection agencies. Among the tactics they will use to try to recover their
money, members of these organizations will resort to feigned empathy and a
friendly and conversational tone to try to coerce repayment.
However, you are not obligated to speak to any creditor
regarding your loved one’s debts. The best thing to do is to never make any
commitment for payment and to end the conversation as quickly as possible.
Taking Personal Responsibility for a Loved One’s Debt
beneficiaries responsible for a deceased person’s debt?” is a very
common question. Unfortunately, some have ended up paying for their loved one’s
debt from their own pocket after having a conversation with a creditor.
Although creditors are legally permitted to contact the
relatives of a loved one to get the contact information for the person
responsible for paying their debts, they are not legally permitted to try to
coerce you into paying the debt yourself. None of your loved one’s
beneficiaries is responsible for the personal payment of their outstanding
The above is true even if your loved one’s estate is
insolvent or contains more debt than assets. If this is the case, you may not
receive an inheritance, but you won’t be responsible for debt repayment,
Any money that is in the estate will be used to pay for
funeral expenses, secured loans, preferential debts (social insurance and tax
contributions) and credit cards or personal loans, in that order.
Deceased Relative Debts Can Be a Complicated Process
Even if you do your homework and your loved one left
detailed instructions, you can still encounter unexpected problems with
settling their debts. The worst thing about going through this process is that
you are already feeling emotionally vulnerable and overwhelmed by what needs to
be done, and creditors are perfectly willing to take full advantage of this.
You also need to ensure that your loved one’s wishes are
followed exactly as they requested, as this can also lead to liability on your
part. Having an estate lawyer on your side, you can communicate
to creditors that, despite your grief, you will not be taken advantage of. You
can also ensure that your attempts to execute their wishes are well within
However, you need to ensure that the person chosen to
represent you is well-versed in New York State probate law. When it comes to
your loved one, there is simply no replacement for an attorney who has the
right amount of knowledge and experience in probate law.
The lawyers at Joseph A. Ledwidge, PC have 32 collective
years of experience in probate and estate administration law. No matter the
legal issue surrounding your loved one’s estate, we are well-prepared to
represent your interests. At our firm, your result matters. Discover the
benefits of working with attorneys who understand your cost and time concerns
as you deal with your loss. Contact us today to arrange your consultation.
In the period of time following the passing of a loved one, it can be difficult to know exactly how to proceed. This is especially true of following probate procedure and administering an estate, which can be a complex and lengthy task if there the decedent held many assets or claims are disputed.
Administering the estate in the correct manner is essential to ensure the wishes of the will are met, state and federal trust and estate laws are followed, and everyone receives their fair share of an inheritance. In this guide, we’ll talk you through the basic steps of probate and estate execution.
Appointing an Executor
The executor is the person tasked with dealing with the bulk of the estate administration. They will identify and catalog the deceased’s assets, pay off outstanding debts, finalize tax payments, and ensure distribution is in accordance with the will.
Choosing an executor is almost always the first step once the probate process has begun. If one has not been explicitly named in the will, then they will be chosen by the court. In most cases, the court-appointed executor will be the surviving spouse or closest relative.
The Next Steps
Once an executor has been appointed, it will be their duty to carry out the following steps. As probate law varies from state to state, the order and timing may vary slightly. In general, however, administration is carried out in the following order:
• Location of Assets – All assets, including real estate, money, stocks, and possessions must be recovered and inventoried. Note that some assets won’t go through probate, such as properties held in living trusts, joint bank accounts, life insurance payouts, and retirement funds with beneficiaries.
• Assessment of Value – The executor must then determine, usually through a third party, how much each asset was worth at the time of death. Many states require that this final inventory of assets be submitted to the court, along with how the values were reached.
• Notification of Creditors – All creditors of the decedent must be identified and notified to determine final debts owing. An advertisement in the newspaper is usually placed to alert creditors who would be otherwise unknown to the executor.
• Settlement of Debts and Taxes – All debts are paid off with the assets of the estate, liquidating physical property as necessary. Estate taxes will also be paid if required by the state.
• Finalization of Tax Returns – The executor will file a final tax return for the deceased, for their personal income during that year.
• Distribution of Estate – Finally, any remaining assets will be distributed to beneficiaries according to the will. Any assets left to minors may need to be placed in trust, which the executor will also have to oversee.
While attempts have been made to streamline estate administration—the most notable being the Uniform Probate Code—this process is not always as straightforward as it may seem. Difficulties can arise if:
• The will is contested
• The deceased is intestate (i.e., does not leave behind a will)
• Debts cannot be fully repaid
• The assets are especially complex or located in other states
Comprehensive estate planning is crucial to avoid these costly, time-consuming, and often emotionally taxing complications. Without the right estate attorney, there’s no guarantee that an estate will be handled the way it was intended to be.
Is your estate in the right hands? If you want to be sure, or if you have any questions about administering a loved one’s estate, you need an attorney who will put your needs first. Contact Joseph A. Ledwidge PC at (718) 276-6656 for a free phone consultation.
The emotional turmoil of losing a loved one can make it difficult to focus on finalizing their affairs in the days and weeks that follow. Having a list can make it far easier to complete these probate administration tasks yourself, or divide them among other family members and close friends.
Before Their Passing
As a relative or close friend, you need to know about their wishes. You should have important information such as funeral, burial, or cremation arrangements, as well as their preferences for organ donation and resuscitation. Knowing whether or not they have appointed a proxy or an advocate in the event that they’re unable to make medical decisions is also vital.
They should inform you about where all of their important documents and items are located. Life insurance policies; their will; keys to any safe deposit boxes; financial statements; and birth, marriage, or divorce certificates are all important items you’ll need to be able to find after they’ve passed away. Finally, they should have drawn up a will and given you a copy.
Immediately Following Their Passing
You will have to get an official pronouncement of your loved one’s death. If they died in the hospital, their doctor can accomplish this. If they died at home and were receiving hospice care, their nurse will be the one to call. If they died at home without hospice care, call 911 and be sure to have their DNR resuscitation document ready.
A Few Days After Their Passing
You’ll need to arrange for your loved one’s funeral and burial or cremation within a few days of their death. Review these estate planning documents and see if they prepaid for their funeral, burial, or cremation. If they were a military member or with a religious or another group, contact them to inquire about funeral services or burial benefits.
The Next Week to 10 Days After Their Passing
You’ll be gathering important documents from various locations in the next week or so. The funeral home can provide you with copies of their death certificate, which you’ll be sending to their insurance company, bank, and government agencies.
You’ll also need to bring your loved one’s will to their county or city office for probate acceptance. Their utility company, pension agency, social security, accountant, bank, and life insurance agent will also need to be contacted.
Talk to an Attorney
Even if you’ve completed all of the necessary steps correctly, the reality is that you can be held liable for not following your loved one’s wishes exactly as stated. Or, you may feel too overwhelmed by your loss to complete all of these necessary tasks yourself. Whatever your particular situation, an estate administration attorney can help you figure out what needs to be done.
The lawyers at Joseph A. Ledwidge, PC are strongly focused on probate and estate administration law. With a combined 32 years of experience, we can help you navigate the probate process. Your result matters to us; call (718) 276-6656 to arrange your consultation.
Holding a joint account can
make a lot of financial sense in certain situations. Although joint bank
accounts carry with them some potential for misuse, the convenience and benefits they offer generally far outweigh
In recent times, they’ve also
been promoted as an attractive way to minimize probate proceedings after the
death of one of the joint account owners—but are they as useful as they’re made
out to be? What’s payable
on death? Are there any complications which could affect what happens to
As with any matters involving New York probate law, an overabundance of caution is always advisable. In
this article, we’ll explain the common uses for joint accounts, what will
happen to them upon death, and what ramifications they have on probate
What Are Joint Accounts?
At its simplest, a joint
account is a bank account held by two people, who then have the same rights of
access to the funds. Permission isn’t required by the other party to make
transfers out of the account, regardless of who deposited the money there in
the first place.
This type of account can be
useful in a number of scenarios:
As a secondary
account that children or other relatives can draw on
As proof of a de
facto (common law) relationship for immigration or visa purposes
For sharing of
funds between you and your spouse
To help manage the
financial obligations of an elderly or infirm relative
To provide easy
access to funds if one account holder becomes incapacitated
Convenience Versus Right of Survivorship
The most important distinction
to note between types of joints accounts is whether it’s a “convenience”
account or an account with “right of survivorship.” This is generally
determined when the account is first created, and the vast majority of accounts
fall into the latter category.
Sometimes this is indicated by
the acronym WROS (With Right Of Survivorship) or JTWROS (Joint Tenants With
Right Of Survivorship) in the account title. If it isn’t, you’ll need to ask
your bank to find out what type your joint account is.
Who Will Inherit the Account
When a joint account holder
becomes incapacitated or unable to withdraw funds for any reason, the other
account holder can typically use the bank account just as they did before. The
same is true if the joint owner dies, but only if the account is one with
“right of survivorship.”
In this case, the joint
account is not subject to probate proceedings and is not considered part of the
deceased’s estate. Since it’s not part of their estate and, therefore, no
longer their property, then it also means that it can’t be bequeathed or
otherwise transferred as part of the execution of a will. The sole owner can
also then close a joint bank
account after death.
On the other hand, if the bank
account is specifically marked as a “convenience” account, the other owner will
no longer have access to the funds when one owner dies. Instead, the entire
account and any contained funds will be treated as the deceased’s assets and,
thus, part of their estate, subject to the probate of the will.
Paying Off Debts
Outstanding debts are settled
as part of the distribution of the deceased’s estate. This means that if the
joint account passes on to the surviving owner, and it doesn’t become part of
the estate, then it can’t be used to pay off creditors. If it’s an account of
convenience, then the remaining funds will be added to the estate and,
therefore, will be liable to be used for debt settlement.
The one exception to this is
if both the deceased and the co-tenant of the joint account were also
co-signatories on a loan. In this case, the surviving owner of the joint
account will be held liable for any remainder of the debt that cannot be paid
off by the estate.
Assuming the joint account is
one with right of survivorship, as most are, then it will not attract a probate
tax. However, there are three other separate taxes that the account will have a
The estate tax is a federal tax on the entirety of the deceased’s
estate, also known as a gross estate. The gross estate includes both probate
assets (those handled by a will) and non-probate assets (those not controlled
by a will, such as jointly owned properties and life insurance payouts).
As a non-probate asset, joint bank accounts on death
are subject to estate taxes. There are estate taxes on both the federal and
state level, although the exact rate varies from state to state.
Inheritance tax differs from
estate tax in that it is a levy not on the entire estate, but on individual
property or assets passed on to inheritors.
While the estate tax is paid out of the deceased’s estate, the
inheritance tax is paid by each individual on their share of the inherited
In theory, this would also
apply to the person who gains sole possession of a joint account. In practice,
this tax is currently only applicable in six states: Nebraska, Iowa, Kentucky,
Pennsylvania, Maryland, and New Jersey. The tax rate also depends on the
proximity of the relationship of the inheritor to the deceased—a spouse, for
example, often pays no tax.
In most cases, income tax will
be negligible on a standard checking or savings account. However, if it’s a
joint investment account with high returns, you’ll need to be careful with how
you report any income generated.
The income generated before
the death of the joint account tenant must be reported in the same way that it
was in prior years. So, if both account holders reported 50% of the income each on their tax return, the
same would be done on the deceased’s final tax return.
As soon as the joint account
transfers to a single owner, however, that owner is then responsible for
reporting the entirety of the income on their own income tax return.
The execution of a will can be
a complicated, emotional affair, especially if not every document and asset has
been managed properly. That’s why it’s vital to find out what kind of joint
account you hold and to thoroughly
document your intentions for the account before anything happens.
All it takes is one missed
detail. Consider an example where a single family member is using a joint bank
account to pay their elderly parent’s bills. They may inadvertently end up with
all the money when something happens, causing friction with family members and
others who feel entitled to their fair share. In the worst case scenario, it
can result in lengthy and costly litigation brought about by the aggrieved
Leave a Legacy, Not Confusion
Don’t leave a valuable estate
open to interpretation. Hire a professional and meticulous estate planner that
can take full care of you and your family. With over 20 years of experience, Queens probate lawyer Joseph A. Ledwidge PC can help executors,
beneficiaries, estate holders, and trustees with a wide range of estate and
Across New York, we deliver clients
the outcomes they need at rates they can afford. Call (718) 276-6656 to find
out how we can help you, too.
Probate is the legal process used to prove a will is valid in order to distribute a deceased person’s assets. It can be a drawn out and expensive process especially in New York, so it’s understandable that most people want to learn how to avoid probate.
Using joint accounts, or, alternatively, payable on death accounts (POD), transfer on death (TOD) accounts, or “in trust for” (ITF)/Totten accounts, is a common way to avoid probate.
Before we explain why—and uncover some of the drawbacks of these accounts—here are some important definitions:
• Joint account: A bank account held by more than one person (e.g., a married couple). Each account holder has the right to deposit and withdraw funds. If one person dies, the other person has the same access to the funds as before.
• Payable on Death (POD): Used to designate beneficiaries for bank or credit union accounts. When the account owner dies, assets are immediately transferred to beneficiaries. Creditors can come after funds in a POD account.
• Transfer on Death (TOD): Similar to payable on death accounts, except TODs are usually used to designate beneficiaries for investment accounts like 401(k)s and IRAs; they can also be used for brokerage accounts, stocks, bonds, and even real estate and bank accounts in some states.
• Totten/In Trust For (ITF) accounts: This designation is more common with older bank accounts. “In trust for” means the person listed as the beneficiary will gain immediate control of the account once the account owner dies, without needing to go through probate. Creditors typically cannot come after assets in an ITF/Totten account.
Drawbacks of Using Joint Accounts
While a joint account can help you avoid probate, it’s not without its drawbacks. Here are a few:
• Lawsuit exposure: If one of the owners of a joint account is sued, the funds in the account can become subject to a judgment lien; this could potentially jeopardize some or all the assets in the account.
• Gift tax issues: If the original account owner adds a new owner (e.g., an adult child) and that person doesn’t contribute anything to the account, the IRS may see this as a gift, subject to gift taxes. Money gifts of $15,000 or less are not subject to taxation; anything above this amount may be must be reported to the IRS on a gift tax return (IRS Form 709). There may also be gift taxes at the state level.
• Disinheriting other beneficiaries: If the original owner of the account fails to add all beneficiaries to the account that they want to receive an equal share, they will have effectively disinherited those beneficiaries.
Drawbacks of Using POD, TOD & ITF/Totten Accounts
Payable on death accounts, transfer on death accounts, and in trust for/Totten accounts are all ways to designate one or more beneficiaries to your bank and investment accounts, stocks and bonds, and real estate after you die.
Like joint accounts, these types of accounts can help you avoid probate, and, like joint accounts, they also have their disadvantages, including:
• Disinheriting other beneficiaries: As with joint accounts, if the owner of an investment account or of real estate fails to designate all beneficiaries they want to inherit the account/property, with POD, TOD, and ITF/Totten accounts they will have effectively disinherited those beneficiaries; this is why it’s critical to keep beneficiary information up to date.
• Death of a beneficiary: If the sole beneficiary on an account/real estate deed dies, the account owner cannot designate another beneficiary; rather, the account will become part of the owner’s estate and will be subject to probate. If there are multiple beneficiaries and one of them dies before the owner, it can be difficult figuring out how much the other beneficiaries receive.
Get Expert Help with Estate Planning and Administration
Careful planning now can help you avoid the lengthy, expensive, and often frustrating probate process down the line.
Joseph A. Ledwidge PC is an expert New York probate attorney representing executors, fiduciaries, heirs, beneficiaries, and other interested parties. He and his associate counsel have 32 years of combined experience and can help you avoid probate through skilled use of trusts and other means.
Call us for a no-obligation consultation today at (718) 276-6656.
When a loved one has passed on, you will inevitably need to begin the work of settling their estate, which will involve going through the probate process with a Queens probate lawyer. In order to ensure your loved one’s property is distributed properly, it’s necessary to understand the difference between probate vs. non-probate assets.
What Is Probate?
The probate process proves the validity of a will before a Surrogate’s Court in the county where the deceased was living. Once the court accepts the will, the assets contained in that will can be distributed. However, before this can happen, the relatives of the deceased need to be called to court and given the opportunity to contest the will with a New York probate attorney if they feel they were unfairly treated.
Probate assets are those which are owned only by the deceased. These assets include items that are in their name alone, such as bank accounts, titled or held property, and life insurance policies.
Probate assets also include any interest the deceased may have had in a company, whether it was a limited liability, corporation, or partnership. Personal property such as automobiles, jewelry, and furniture are also considered to be probate assets by New York probate law.
Non-probate assets are those which are not solely in the deceased’s name. These assets include retirement, brokerage, and life insurance accounts which list a name other than the deceased’s as the beneficiary. Any property that’s held in a trust qualifies as a non-probate asset, as does property held in its entirety by tenants or in a joint tenancy.
A major difference between probate and non-probate assets is that the deceased’s will does not control how non-probate assets are distributed. Where the deceased has named one or more specific beneficiaries for non-probate items, those items will be distributed directly to these named individuals. Non-probate items without a named beneficiary may default to the estate of the deceased so that those assets can be distributed according to terms laid out in their will.
Probate Can Be a Complex Process
Unfortunately, the New York probate process sometimes becomes a difficult and complex process to navigate when family members contest the will of a loved one, or the settlement of a loved one’s assets places a significant financial burden on the executor.
Even jointly owned accounts can be challenged, which can complicate matters even further, not to mention cause division within the family. This can all add more negativity to an already difficult situation.
With a strong focus on probate and estate administration law, the law offices of Joseph A. Ledwidge PC represent executors, fiduciaries, heirs, beneficiaries, and other interested parties. Possessing a combined 32 years of experience, our attorneys understand the value and importance of providing clients with attentive service and manageable fees.
Your result matters. If you need help navigating the New York probate process of a loved one, call (718) 276-6656 to be put in touch with an experienced Queens probate lawyer.
You might wonder how an executor gains the legal authority in New York to take direct charge of the finances and property of a person who has died. It is actually quite simple. The legal authority to start managing an estate comes when a probate court issues letters testamentary. Whether you are preparing to become an executor yourself or are just a beneficiary, it is important to know what part letters testamentary play in probate matters.
As Bankrate explains, after an individual has passed away, a probate court will determine the validity of the decedent’s last will and testament. Assuming that the decedent had named a person in the will to take on the duties of the executor, the court will authorize that person to act as the executor if the court rules that the will can go into effect. This authorization occurs when the court issues letters testamentary.
Letters testamentary allow a person to perform all the necessary duties of an executor. The executor is allowed to open a bank account in the estate’s name and gather the money of the estate into the account for the purposes of closing out the various matters of the estate. These can include paying off bills and taxes the decedent had still owed before passing away. Additionally, the executor is empowered to take inventory of the assets of the estate, file the final tax return for the estate, and distribute the assets of the estate.
In the event that someone dies without a will, a court will not authorize letters testamentary. Since the decedent did not make a will and did not name an executor for the estate, the decedent’s estate is deemed intestate. It will be up to the court to appoint someone to be the executor. To authorize the executor to carry out the duties of the position, the court will issue letters of administration.
Keep in mind that this article is written to educate New York residents on probate topics. Since issues with probate take many forms, this article should not be read as legal advice.