What Information Is Included in a Citation?

The citation will include a date to appear in court, as well as the address of the courthouse where the proceeding is held. It will also include the name and address of the deceased person and the person who requested the citation 鈥� typically, the proceeding鈥檚 Petitioner, and their attorney, should they have one. The citation should also set forth the reason why you are being asked to appear: most often, this is to give you an opportunity to consent or object to a Will being recognized as valid, or to a person being appointed as a fiduciary. If the citation is for probate 鈥� that is, where a Will is involved 鈥� you should also receive a copy of that Will for your review.

What to Do If You Receive a Surrogate鈥檚 Court Citation

You鈥檒l want to familiarize yourself with the 鈥渨hy鈥� section of the citation to determine your next steps. If you do not appear at the date set forth in the notice, the Court will assume that you consent to what the Petitioner is asking for. You do not need to appear at the Court date if you have no objection to the proceeding. However, if you have questions regarding the request or possible objections, you must appear at the citation date and make your position known to the Court. You may also request an adjournment 鈥� a brief stay in the proceeding 鈥� to provide for additional time for you to obtain information and consult with an attorney.

Do You Have to Appear In Person?

Some Surrogate鈥檚 Courts now use 鈥渧irtual chambers鈥� and do not allow for in-person appearances at the Court date. It is important that you review the Notice to Cited Parties that accompanies the citation and check whether appearances are in-person or virtual. If the appearances are virtual, the Court may require a written response from you several days before the Court date, indicating whether you intend to appear. This will allow the Court sufficient opportunity to forward you a link to appear by Zoom or Microsoft Teams and state your intent.

Reach Out To an Estates Attorney If You Have Questions About a Surrogate鈥檚 Court Citation

Receiving a notice from the Court may be unsettling, especially if it is unexpected 鈥� but the Court鈥檚 intent is not to scare you. The Court simply wants to ensure that you have a 鈥渟eat at the table,鈥� and that you are aware of a proceeding that may impact you. If you receive a citation and are unsure of your options, an experienced estates attorney can help you navigate the process.

By Britt Burner, Esq. and Frank Oswald, Esq.

Britt Burner, Esq. is the Managing Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. Frank Oswald, Esq. is an associate attorney at 明星黑料, P.C. focusing his practice areas on Trusts and Estates. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

How To Transfer Stocks in a Probate Estate

If you are an executor in this situation, you should first determine whether the stocks are held in a brokerage account, or whether the stocks are held directly with the issuing company. If the assets are held in an investment account, you should promptly notify the brokerage to advise them of the passing, as well as your role as fiduciary. The brokerage will typically require you to complete a form that opens a new account in the name of the estate. You will also be required to submit a death certificate, as well as the Letters Testamentary or Letters of Administration from the Surrogate鈥檚 Court which allow you to act.

Alternatively, if the stocks are held with a transfer agent (i.e. EQ Shareholder Services or Computershare), you must do some additional diligence to determine the decedent鈥檚 account number and the precise number of shares for each company. If you do not have this information, the transfer agent may send it to the last mailing address they have on file. Once you have all details, you must complete a form for each stock company, authorizing a transfer to the estate. As with the brokerage, you must submit a death certificate and your Letters Testamentary to proceed, as well as the original stock certificate, should you have one.

Occasionally, if the holdings exceed a certain monetary value, the brokerage or transfer agent will require you to obtain a special certification called a 鈥淢edallion Signature Guarantee鈥� from a financial institution. This Medallion is similar in function to a stamp from a notary public, and verifies that you are legally authorized to transfer the stocks to the estate account. Banks and credit unions will offer a Medallion guarantee at no cost to their account holders, but be sure to check with the institution to determine which documents are needed for the seal.

Liquidating vs. Transferring Stocks In Kind

When all documents are submitted to the brokerage and the estate account is opened, you may transfer the stocks 鈥渋n kind鈥� to each beneficiary, or you may sell all stocks and distribute the proceeds, as cash, to the beneficiaries. If you choose to liquidate the stocks, you should be aware that the stocks may be subject to capital gains tax, if their value has increased since the decedent鈥檚 date of death. However, a direct transfer of stock to each beneficiary does not create a taxable event, and accordingly, no taxes would be due from this method.

Simplify Stock Management with an Estate Planning Attorney

Marshaling shares of stocks can be quite challenging, especially if the decedent did not keep diligent records of their holdings. Nonetheless, fiduciaries have a responsibility to efficiently marshal all estate assets, including stocks. Coordinating with an experienced estate attorney can simplify a complex process and ensure that all assets are collected and distributed in an effective manner.

By Britt Burner, Esq. and Frank Oswald, Esq.

Britt Burner, Esq. is the Managing Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. Frank Oswald, Esq. is an associate attorney at 明星黑料, P.C. focusing his practice areas on Trusts and Estates. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

How to Decline Being an Executor

While it is important to carefully consider whether to serve as an executor or not, you are not obligated to serve just because you have been named in the Will. Any person nominated as an executor can decline the role for any reason. This is accomplished by executing a form called a Renunciation of Nominated Executor. As the title suggests, by signing this form in the presence of a notary public and filing it with the appropriate Court, you can renounce your right to serve as Executor and allow the next person in line to serve. Note that you can only renounce the designation after the testator passes away 鈥� you cannot pre-emptively decline to serve in the role.

What Happens If You Decline?

Typically, a Will names a successor executor, who will have top priority to act as fiduciary in your stead. However, if there is no successor executor named, or if the successor executor is unable to act for some reason, any of the beneficiaries named in the Will can act in a fiduciary capacity by obtaining Court documents called Letters of Administration c.t.a. (cum testament annexo; or, 鈥渨ith the Will annexed鈥�). If none of the beneficiaries agree to serve, the beneficiaries can each designate another individual to serve, provided they can each agree on the person (see SCPA 1418(6)).

Can an Executor Resign After Being Appointed by the Court?

An executor can also decline to serve in the role after they have been appointed by the Court, though the process involves additional hurdles. In this case, a Court-appointed fiduciary must request permission from that Court to resign. The fiduciary must clearly provide 鈥済ood cause鈥� for leaving the role 鈥� in other words, the executor needs a compelling reason to quit, and must show that their resignation is in the best interest of the estate. Additionally, the executor must provide a formal accounting to all beneficiaries of all financial transactions made since her appointment, meaning the resignation process can be extensive.

Should the court determine that the resignation is in the best interest of the estate, and聽 none of the beneficiaries object to the accounting, the Court will make a determination as to whether the executor can resign. Ultimately, the final decision rests with the Court 鈥� so if you are having doubts over whether you would like to serve as executor, it is far easier to resign at the beginning of the process rather than quit midway.

By Britt Burner, Esq. and Frank Oswald, Esq.

Britt Burner, Esq. is the Managing Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. Frank Oswald, Esq. is an associate attorney at 明星黑料, P.C. focusing his practice areas on Trusts and Estates. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

Challenge #1: Understanding the Family Tree

One hurdle is possessing sufficient knowledge of a person鈥檚 family tree. In New York, when someone passes away with a Will, the executor is responsible for providing a copy of the Will to the deceased person鈥檚 鈥渘ext of kin鈥濃�� even if those family members are not inheriting. The family members can either sign a waiver which expresses their consent to the Will being admitted to probate, or the Court will provide a date where the family members can appear and file objections.

Challenge #2: Dealing with Hard-to-Find Relatives

Being an executor can be especially tricky if someone dies with more remote next of kin, such as cousins or first cousins once removed. Sometimes, a genealogist will be hired to determine the deceased鈥檚 next of kin, or the court will require publication in a local newspaper if next of kin is unknown. This can be costly and cause significant delays in the court proceeding. Sometimes the Court will require that an attorney be appointed on behalf of an unknown next of kin or have the Public Administrator review the efforts made to locate and provide notice to all next of kin. The estate must pay for these additional fees and attorneys.

Challenge #3: Limited Access to Estate Funds

The process can be cumbersome when an executor has no access to funds, since the deceased鈥檚 accounts can only be accessed after the Court issues Letters Testamentary. Payment for the attorneys鈥� fees and genealogist鈥檚 fees may have to be paid upfront, and then reimbursed once there is access to estate funds. Executors may take a commission, but it is based on the value of estate assets, not the time spent attending to the estate.

Challenge #4: Access to the Original Will

Additionally, you want to make sure that your friend provides you with access to the original Will as you will be required to file the original for probate.

Why Inheritance Can Be Problematic

Sometimes an inheritance can create more problems than it solves. A sudden gift might yield assets that create income which will bump someone into a higher tax bracket or make them ineligible for certain government benefits, like Social Security Income, Medicaid or student aid. For someone who already has significant assets, taking on more might even complicate their own estate plans or create estate tax issues for their heirs down the road. And occasionally, a person just does not want or need what has been left to them.

How Can You Refuse an Inheritance in New York?

Whatever the reason, the law gives beneficiaries the right to refuse an inheritance through something called a renunciation. In New York, the rules are found in Section 2-1.11 of the Estate Powers and Trusts Law. To do it properly, the beneficiary has to put the refusal in writing, sign and notarize it, file it with the Surrogate鈥檚 Court that is handling the estate, and make sure the executor or administrator gets a copy. All of this has to happen within nine (9) months of the decedent鈥檚 date of death.

Although the statute sets forth a nine-month deadline, it is not impossible to refuse an inheritance after the deadline has passed. A beneficiary who misses the deadline may petition the Surrogate鈥檚 Court handling the estate for permission to file the renunciation late. The Court determines such petitions on a case-by-case basis.

The Court will consider factors when making its determination such as whether the beneficiary knew about the asset prior to the deadline, or if the asset was not part of the estate until after the deadline passed, The beneficiary must also show that the renunciation does not unfairly prejudice any of the other heirs or creditors of the estate, and that the refusal is being made in good faith.

What Happens If You Decline Inheritance?

The effect of a renunciation is that, for purposes of determining who inherits property, the renouncing party is treated as though she predeceased the decedent. For example, say a provision in a Will states, 鈥淚 leave the sum of $100,000.00 to Agatha, if she survives me; if she does not survive me, then to Betty.鈥� If Agatha does not want to receive her bequest, she may wish to sign a written renunciation of this interest. If she files the appropriate documents in a timely manner, and serves them upon the appropriate parties, the Court will treat Agatha as though she predeceased the decedent, and the sum will go to Betty.

If You鈥檙e Thinking About Renouncing Inheritance, Consult a Professional First

Beneficiaries should consider carefully whether they want to refuse the interest before signing a renunciation. A renunciation, once signed and filed, cannot be revoked. Accordingly, a person seeking to refuse an inheritance should consult with financial advisors or other professionals to ensure they fully understand the effect. Speaking with an experienced estate attorney before the nine-month period expires will ensure both peace of mind and full compliance with the appropriate state law.

In the end, saying 鈥渘o鈥� to an inheritance might feel counterintuitive鈥攂ut in the right situation, it can be a thoughtful and financially savvy choice.

By Britt Burner, Esq. and Frank Oswald, Esq.

Britt Burner, Esq. is the Managing Partner, and Frank Oswald, Esq. is an Associate Attorney at 明星黑料, P.C. 明星黑料 serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan, and East Hampton.

What is Voluntary Administration?

Voluntary administration is an expedited proceeding that can only be utilized when a fiduciary needs to transfer personal property valued at $50,000.00 or less. This includes bank accounts, automobiles, stocks, insurance proceeds, and other valuable tangible items. It cannot be used for real estate, even when that property is valued at less than $50,000.00.

How Long Does Voluntary Administration Take?

Unlike probate, which can take several months or even years depending on the complexity of the estate, a voluntary administration proceeding typically has a turnaround time of less than eight weeks before the fiduciary is authorized to act. In addition, when compared to probate, voluntary administration often has lower costs due to minimal filing fees.

What is the Voluntary Administration Process?

The process begins with an 鈥淎ffidavit in Relation to Settlement of Estate,鈥� which should be completed either by the Executor named in the Will, or, if there is no Will, by the deceased person鈥檚 closest living relative. The attesting party must provide certain information about the deceased and identify each of their next-of-kin, as well as the names and addresses of all beneficiaries in the Will (if there is one). They must set forth all of the assets of the estate and their approximate values, as well as all of the liabilities of the estate, including outstanding bills, rents, and other expenses.

From there, the Court notifies each of the next-of-kin that a proceeding has been filed. While probate requires each of these parties to either appear in Court or sign a document called a 鈥淲aiver and Consent,鈥� voluntary administration has no such requirement 鈥搑esulting in a process that moves more swiftly through the Court system and avoids the expense of having to serve parties with documentation.

Once the Court appoints a voluntary administrator, they will issue one Certificate of Voluntary Administration for each asset named in the affidavit.

Those Certificates grant the fiduciary limited authority to collect each asset. In other words, if there are additional assets that are discovered after the Certificates issue, the fiduciary will need to return to Court and update the proceeding to reflect the new asset total. If that total exceeds $50,000.00, a full probate or administration proceeding is required.

Is Voluntary Administration Right For You?

While voluntary administration is a useful option to collect smaller assets more quickly, the fiduciary has significant restrictions compared to the powers granted by the probate process. Accordingly, it鈥檚 always a good idea to consult an estate attorney to determine which method is best for your loved one鈥檚 estate.

By Britt Burner, Esq. and Frank Oswald, Esq.

Britt Burner, Esq. is the Managing Partner, and Frank Oswald, Esq. is an Associate Attorney at 明星黑料, P.C. 明星黑料 serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan, and East Hampton.

Which Ownership Includes a Right of Survivorship?鈥�

A right of survivorship arises when property is jointly held. For real property, i.e. a house or tract of land, there are two types of ownership that include the right of survivorship: (1) joint tenancy with the right of survivorship and (2) tenants by the entirety, which requires a couple to be married when they retain ownership of the asset. For assets like bank and investment accounts, any two owners enjoy survivorship rights regardless of marital status.

The Risks of Adding a Joint Owner for Convenience

As people become elderly or health declines and it becomes harder for them to transact their own business, out of convenience, some will add a child or a trusted person as a secondary owner of bank accounts. While putting a power of attorney on file with a bank or investment institution can achieve the same goal, some choose to give access to another person by putting their name directly on the account. Caution to those who want to add a joint owner for the sake of convenience, it can lead to conflict among family members when an individual passes and the surviving joint owner automatically becomes the full owner of the account.

How Joint Tenancy with Right of Survivorship Affects Bank Accounts

According to New York banking law, when two or more people open a bank account and deposit cash or securities, a presumption of joint tenancy with the right of survivorship arises. For the presumption to apply, words of survivorship must appear on the signature card or ledger of the account. If one intends to leave the account assets to all children, then naming one child 鈥渨ith rights of survivorship鈥� defeats your intent. Although you may wish for your child to split the money with siblings, there is no guarantee she or he will do as you wish after death. It is important to be very clear with a bank the reason for adding another person as an authorized user of the account so they can assist you in titling the account properly either as a convenience account or joint with right of survivorship.

Properly Titling Your Assets Is Key

It is crucial to understand how all your assets are owned. Regardless of what a person intended or expressed during his or her life, the way assets are titled overtakes and supersedes any verbal or handwritten wishes made during one鈥檚 life.

By Britt Burner, Esq. & Erin Cullen

Britt Burner, Esq. is a Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. Erin Cullen is a graduate of the Maurice A. Dean School of Law at Hofstra University. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan, and East Hampton.

When Is Probate Required in New York?

Even in the simplest of circumstances, the probate process is necessary if assets are in your cousin鈥檚 sole name and no beneficiary is listed on the asset. If there is a joint owner on an account, it will belong to that joint owner. If a stock account has a transfer on death (TOD) beneficiary, that person or persons will inherit. This is the same on accounts that are payable on death (POD), in trust for (ITF), or, as for retirement assets, have a designated beneficiary. Absent one of these designations, probate is necessary.

The Probate Process: What Are Your First Steps as an Executor?

The first step of the probate process is for the nominated executor to submit a probate petition with the original last will and testament and original death certificate to the Surrogate鈥檚 Court of the county where your cousin was domiciled (where they lived) at the time of death. As part of this, the next of kin need to be identified and given notice that the last will and testament is going through probate, even if those individuals are disinherited.

Who Must Be Notified During Probate?

We all have next of kin, but do we know who they are? For a married individual that has children, both the spouse and children will be notified. Without a spouse or children, next of kin will be the parents, then siblings, children of siblings (i.e., nieces and nephews), and so on. These people who must be notified are also the ones that have the ability to bring legal objections to the will.

Be Aware of Creditor Claims Against An Estate

The seven months following the appointment of the executor or administrator is called a creditor claim period. This is the period during which creditors may pursue claims against the estate. Debts in New York are legally required to be paid in this order before any distribution to heirs: reasonable funeral costs and estate administration expenses, federal debts, state debts, property taxes assessed before the person died, court judgements, medical bills, unpaid loans, rent, credit card bills, etc.

What If a Creditor Does Not File a Claim Against An Estate in the Required Time Frame?

The Surrogate鈥檚 Court Procedure Act states that if a creditor fails to file a claim against the estate within seven (7) months of letters being issued to a fiduciary, then that fiduciary will not be personally liable for any funds distributed to beneficiaries or distributees in good faith. Even after the seven months have elapsed, if a fiduciary makes a distribution while the estate still had unpaid creditors, the fiduciary will be personally liable if they knew or should have known, about a claim.

What If There is Not Enough Money in an Estate to Cover All Debts?

If a decedent鈥檚 estate does not have sufficient assets to satisfy all claims, the bequests stated in a will may need to be reduced so that the creditors鈥� claims can be paid. Creditors have priority regarding the payment of estate assets. It is very important to wait the seven months and make sure all creditors of the estate are paid. Otherwise, any money distributed to a beneficiary or heir at law may need to be returned to satisfy the estate鈥檚 debts. It is also possible that assets that were not included in the estate, such as joint assets, be used to pay the claim.

Reimbursing Yourself as an Executor Requires Careful Planning

While the estate鈥檚 fiduciary, an executor or administrator, may reimburse himself or herself for expenses paid during the administration of the estate, it is wise to make sure the seven-month creditor period has elapsed and all creditor claims have been paid first. It is important for an executor or administrator to know his or her role and duties. Fiduciaries should be candid with beneficiaries or heirs at law regarding time frames and priorities by which the fiduciaries must abide.

By Britt Burner, Esq. & Erin Cullen

Britt Burner, Esq. is a Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. Erin Cullen is a graduate of the Maurice A. Dean School of Law at Hofstra University. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

How is the Fiduciary of an Estate Appointed?

Before getting to the work of the estate, there needs to be an identification of who is responsible. This is the 鈥渇iduciary.鈥� When there is a will that requires probate, this is an executor appointed by the surrogate’s court. An estate attorney can assist with the court filings required to probate the estate and appoint the executor. If the assets are held in a living trust, there is a trustee appointed through the document, this does not require approval of a court. If all assets have a beneficiary designation or joint owner, there will be no executor or trustee, no person will be responsible for the estate as a whole.

What Does a Fiduciary of an Estate Do?

The work of a fiduciary will differ for every estate. In almost all situations there is a clean out of the primary residence, a collection of assets, payment of debts, filling of income taxes, and accounting to beneficiaries.

Prior to making any final distributions, the beneficiaries of the estate are entitled to receive and review an accounting prepared and provided by the fiduciary for the estate. The accounting reports to the beneficiary the assets of the estate, the income collected since death, the expenses, debts and claims that were paid on behalf of the estate, and the amount and value of funds that ultimately remain on hand to be distributed to the beneficiaries. Once the accounting is approved, the ultimate distribution is made in accordance with the distribution set forth by the deceased person or, in the absence of a will or trust, as provided by the laws of intestacy.

The beneficiaries of the estate generally have questions regarding the transactions of the fiduciary. It is important that the fiduciary respond and address any concerns the beneficiary may have regarding the administration of the estate. After explanation and substantive discussions, most accountings are approved by the beneficiary and the estate fiduciary can proceed to the next and likely final step of making final distributions.

An Estate Lawyer Can Help Avoid Challenges in Administration

Many that serve as executor or trustee are doing so for the first time. Being guided and advised by an attorney can ensure there are no missteps in handling the estate. Beyond the regular responsibilities there can also be conflict between the fiduciary and beneficiaries. The fiduciary should certainly retain an attorney to handle such conflict, especially if it rises to the level of court proceedings. This can come in the way of objections to the will itself, objections to the executor being appointed, or objections to the accounting presented to the beneficiaries.