How do you remove an executor?

New York residents who are dealing with matters of wills and estates will also be dealing with executors. However, situations may come up in which you believe an executor of a will or estate should be removed from their position for whatever reason.

According to FindLaw, as the executor of a will , a person has a number of duties that they are expected to accomplish. This includes paying bills for the estate, distributing assets according to the will, paying any taxes due, maintaining property, and making court appearances on behalf of the estate.

In some instances, the executor of a will may not be fulfilling these duties. You may have evidence that they are not paying bills or that they have not been distributing assets. Fortunately, the executor that is appointed by a probate judge does not have to remain the executor indefinitely. It is possible to have an executor removed. 

You can take your case before a probate court. You will need proof of mismanagement or misconduct. If this can be proven, then the court will likely grant a petition to remove the personal representative or executor. You may then proceed to appoint a new one who will pick up with the duties in their place.

If you are in a situation in which you believe an executor should be removed from a will or estate, seek the guidance of a probate attorney. Dealing with matters of the estate can be tricky and complicated. Having someone with legal expertise could ease some of those complexities.

What happens if I die without creating a will?

Most people in America understand that it is important to have a will to ensure that when a person passes away, their property will transfer properly to their beneficiaries. However, far too many people put off creating any kind of will at all, because they assume they’ll get around to it, or possibly even fear creating it.

In the last several years, we’ve seen several high-profile celebrities pass away with significant estates and no will to direct how to disperse their property. Unfortunately, this means that the government must step in and more or less seize the property until it determines how to disperse it according to state law.

Failing to create a will places those you love in the difficult position of depending on the good graces of the government to determine what portion of your estate they receive, or if they get anything from your estate at all.

If you have yet to create a will, don’t wait any longer. The sooner you create your will, the sooner you can rest assured that your loved ones won’t have to deal with the long, frustrating process of estate administration, and the sooner you can protect your wishes for your property.

Dying intestate

If you pass away and have no will to direct your estate distribution, then the law must determine who gets a portion of your estate. This typically has nothing to do with your preferences, even if you verbally expressed them to others many times.

Instead, the law follows guidelines based around how many direct and extended family members are still living. For instance, if you are single when you die and have no children to inherit your estate, then your estate typically goes to your parents, or if you have no living parents, then to your siblings, and so on.

If you are married or have children of your own, the law breaks down very specifically which party receives a portion, and the specifics of your circumstances are crucial here. Should you pass away with a domestic partner, the state may or may not recognize them as a direct beneficiary.

Each configuration of surviving family members changes how the distribution occurs, but, in most cases, the distribution is not satisfying to the parties involved. Unless you truly do not care at all about your family and beneficiaries, or your property, then it is very important to create a will as soon as possible.

Protect yourself now

Waiting to create a will is gambling with your own property and with the lives of those you love. Navigating the estate administration process is not simple, and it typically depletes the value of the estate along the way. Be sure to create a will as soon as you can to make your wishes for your property known and to help those you love avoid a lengthy and frustrating legal process after you pass away.

New York and federal estate taxes

New York residents live in a minority state in at least one senese: the probate process levies an estate tax on inheritances. This is in addition to federal taxes of the same type. 

An estate represents the efforts of at least one lifetime. Some of the assets in estates — business earnings, wages and stock dividends, for example — were typically previously reduced by taxes. It is often possible to avoid further taxation, but it often requires significant planning. It also requires a thorough understanding of the way the tax works.

The federal and state inheritance taxes work similarly, at least on the surface; both allow for a lifetime deduction before considering the estate for taxation. However, that is where the similarity ends, for the most part. 

An article in Forbes about the new federal tax regulations touches on some common estate-reduction strategies while focusing on the recently increased exemption limit . Essentially, the significant increase gives more freedom to those who intend to allow their assets to go through probate. However, it might not be wise to take full advantage of this in New York.

Relatively few states impose an estate tax, but New York is one of them. The Department of Taxation and Finance offers details of the inheritance regulations  on its official website. Here are the important points:

  • The state tax rate is much lower than the federal rate
  • New York taxes the entirety of any non-exempt estate
  • The state exemption is lower than the federal exemption

All of these regulations add up to an environment in which leaving a sizeable estate is not necessarily the best way to bestow wealth. As a result, wealthy people use various techniques to reduce the value of their estates to a level below the allowed federal and New York exemptions. 

Breaking down trust terminology

Terminology is one of the largest challenges people in New York have when first considering trusts as a form of estate management. This article briefly considers a few key terms and phrases the law uses, hopefully with the effect of clarifying the language for non-lawyers.

It is important to remember that many of these terms could be different from one jurisdiction to the next. Therefore, focusing on understanding the role, behavior or idea in question — rather than simply memorizing the words — is usually the quickest way to comprehend how trusts work.

The first necessary element is an asset. Many things of value could be held in a trust. Some simple examples could include cash accounts and certified bonds. 

The next step is for an individual to entrust an asset to another party. The word ‘giving’ in this sense might not mean a transfer of ownership, conventionally speaking. New York law calls the person who gives assets a grantor. The person to whom the assets are given is a trustee. Grantors are often people involved in the estate planning process, whereas trustees are often attorneys or other trusted individuals. 

Beneficiaries are the last requirement for a trust. These are the people who benefit from the trust — those who have access to the assets. As mentioned in FindLaw’s introduction to trusts, the grantor and the beneficiary  might be the same person. These types of trusts often have clauses that name new beneficiaries after the grantor’s death. 

The final piece of the puzzle is the trust. This term refers to the agreement between the parties involved, not to the assets themselves. For more specific context, FindLaw has a brief discussion of the laws governing trusts in New York , as well as links to the official state code.

With all of these definitions in mind, one could fully comprehend the statement that a trust is an agreement between a grantor and a trustee to manage assets on behalf of a beneficiary or beneficiaries. These concepts are the foundation for further investigation into this subject, such as researching different types of trusts or questioning the ethical behavior of a trustee. 

Fair and equitable inheritances for children

What if, before the age of majority and full inheritance, one of your children had an opportunity to attend an elite school? What if one decided to study finance, while another pursued a less bankable profession? Our team here at the office of Joseph A. Ledwidge, P.C., strives to aid New York parents in developing long-term, sustainable estate distribution strategies that would be fair to all children, even in the face of these types of complex situations.

Even if you were the parent of a single child, it could benefit your progeny and your estate to consider some alternatives to a standard will. The courts in New York would probably be relatively simplistic when it comes to distributing your assets to your minor child or children. 

Possibly the most common advice we find ourselves giving to clients is to establish trusts for their children. These documents have the potential to have the secondary effect of being an ethical signpost in addition to managing assets on behalf of your heirs . For example, you could set up a trust that stipulates that your child graduate from high school or college before obtaining access to funds.

We see many trusts that set the age of the beneficiary as the only requirement for access. However, other conditions could be effective, such as the academic example above. You could consider common examples of criteria for fund access, such as:

  • Low annual salaries
  • Keeping good grades
  • Avoiding criminal conviction

Our office is proud to help families make sense of complex estate planning, working towards management plans that are simple, equitable, exhaustive and legal. Please read more on our main site.