New York Probate, Trust, & Estates Law FAQ

If you face the probate process in New York, you probably have many questions about the legal issues. On this page we provide general information and answers to frequently asked questions. For answers to questions about your specific case, consult with an experienced New York probate law lawyer.

Q: How long does the probate process take?

A: Anywhere from a couple of months to years, depending on the issues of your particular case. Factors that affect the length of the probate process include the amount of assets, whether or not there is a valid will and whether anyone is contesting the will.

Q: How much does probate cost?

A: Again, the answer depends on the complexity of the estate and whether or not there are disputes involved. Our law firm provides reasonable rates and flexible payment options to help clients manage the costs of the probate process.

Q: Do I need an attorney for the probate process?

A: There is no law stating you need an attorney, but if the estate has significant assets and potential legal issues, you are better served by retaining your own counsel. If you are a beneficiary, you need to make sure you obtain your fair share of the estate. If you are an estate executor or administrator, an experienced lawyer can help you avoid costly personal liabilities.

Q: What if my family member passed away without a will?

A: Estate administration is the process of settling the financial affairs of someone who died without a will, legally referred to as intestate. In the estate administration process, assets are distributed according to New York laws of intestacy.

Q: Can I have the executor removed?

A: If you suspect the executor is not fulfilling his or her fiduciary duties, you can file a petition to compel an accounting by the executor. This will require the executor to produce a full accounting of his or her activities, including all transactions involving estate assets.

Q: What if a child is born after their parent executes their will? 

The answer to this question is not exactly straightforward. Under the NY estate law a parent is under no obligation to leave a child any portion of their estate. A parent may completely disinherit their children within the NY probate law. However, there is a provision in NY estate law for a child born after their parent drafts a will. These children, referred to as “afterborn children,” can inherit their intestate share of their parent’s estate. There is a legal presumption under New York State law that the parent’s will was not drafted in contemplation of the afterborn child’s birth, and as a result, the afterborn child was unintentionally excluded from their parent’s estate. However, in order for an afterborn child to inherit, there must be provisions for any other children born in their parent’s NY will prior to the will’s execution. Otherwise, the afterborn child is precluded from inheriting their parent’s estate. For example, if Mary has two children, Jack and Jill, and she does not provide for either in her will, any child born to Mary after the will is executed will be disinherited despite the afterborn child provision in the law.  

To date only one exception exists to the afterborn children provision, in the case Matter of Gilmore. In that case, the NY Surrogate’s court determined that if a child born prior to the execution of a will is excluded from the will but later adopted into the family, that child may step up to inherit as an afterborn child. The rationale for this sole exception being that while the child was born prior to the will’s execution and therefore was not an afterborn child, the parent adopted the child into the family. As a result, the adoption substitutes as the date from which the child was conceived. 

Q: My father passed away three months ago. He had no will. However, he left quite a few assets such as a house, car, and some valuable jewelry. How should these items be divided amongst me and my two sisters?

When a person dies without leaving a Last Will and Testament, that person’s property is distributed according to the law. This law is called intestacy law. In New York, that law is found in EPTL 4-1.1. This process begins by determining who is in the family. If there is a spouse and no children, the spouse receives 100 percent of the estate. If there is a spouse and children, the spouse receives $50,000 plus half of the balance of the estate. The children inherit everything else. If one of the children is deceased and they had children, those children take their deceased parent’s share. When there are just children and no spouse, the children share the estate equally. So if your father had no spouse, you and your sisters would get an equal portion of your father’s estate. If you and your siblings are not able to agree on which personal items to take, the court will order the items sold and the proceeds will be divided amongst the distributees of the estate.  

Example: Bruce is married to Kristine and they have three daughters. Bruce owns a house in joint tenancy with Kristine plus $300,000 in cars and jewelry. When Bruce dies, Kristine inherits the house outright and $200,000 worth of Bruce’s property—that is, $50,000 plus $150,000 worth of the balance. Bruce’s three daughters inherits the remaining $150,000 share of Bruce’s property.

Q: What happens if you die without a will and without any family?

If you die without a will and don’t have any family, your property will “escheat” into the State of New York. This is a very rare occasion, however, because most people have some type of family and the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave grandchildren, great grandchildren, parents, grandparents, siblings, nieces, nephews, great nieces or nephews, aunts, uncles, or cousins.

Q: What is a trust? What are the different types of trusts in estate planning?  

A trust is an arrangement where someone (the trustee) controls property for the benefit of another person (the beneficiary). A trust is a private document (unlike a will) that does not get filed in probate court, which could be a time-consuming and costly process. There are many different types of trust documents, the following is a discussion regarding two of the most common: Revocable Living Trust and Irrevocable Living Trust.

A Revocable Living Trust or Inter-Vivos Trust is generally used to describe a trust that you create during your lifetime. A revocable living trust becomes irrevocable when the grantor dies because he’s no longer available to make changes to it. A living trust can help you manage your assets or protect you should you become ill, disabled, or simply challenged by the symptoms of aging. Most living trusts are written to permit you to revoke or amend them whenever you wish to do so. These trusts do not help you avoid estate tax because your power to revoke or amend them causes them to continue to be includable in your estate. These trusts do help you avoid probate, which may not always be necessary depending on the cost and complexity of probate in your estate. A revocable trust can protect the privacy of your property and beneficiaries when you die as well. The trust agreement remains a private document.  Because it’s not subject to probate, it does not become a public record that anyone can access and read. Your assets and the beneficiaries of your estate remain a private matter.

An Irrevocable Living Trust is simply a type of trust that cannot be changed by the grantor after the agreement has been signed and the trust has been formed and funded. For the most part, it’s forever. You cannot take property back placed into it, act as trustee, or manage the trust’s assets. Although you’ll give up control over the trust property, you do have control over the rules that govern the trust and you can determine the uses of the trust assets. You determine who serves as trustee and name the beneficiaries. You can even retain the right to change beneficiaries. Some benefits of the irrevocable trust are: 

  1. Asset Protection – Property placed in a trust is generally shielded from outside creditors, liens, and even divorcing spouse. 
  2. Savings on Estate Taxes – The property is not included in tax calculations of the total value of property at the time of death because the deceased grantor no longer owned the property. 
  3. Medicaid Planning – By placing assets into an irrevocable trust five years ahead of the actual need to obtain Medicaid benefits to pay for a nursing home, the grantor has secured his assets for the benefit of named beneficiaries.

Contact A New York City Probate and Trust Attorney

If you have questions about the probate process in New York, we are here for you. Reach us online or by telephone at 347-395-4799 to arrange a consultation with a knowledgeable probate litigation lawyer.

We represent individuals and families around Queens, Brooklyn, Manhattan, and all across New York City.