Probate vs. Small Estate Administration in New York

It is important to understand that probate and small estate administration are not the same. In New York, if a decedent鈥檚 estate consists of $50,000 or less in personal property (excluding real estate), a simplified proceeding called Voluntary Administration (commonly referred to as 鈥渟mall estate administration鈥�) may be available. While this process is more streamlined than full probate, it still requires filing documents with the Surrogate鈥檚 Court and obtaining authority before assets can be transferred.

New York also provides a limited exception through the Department of Motor Vehicles. In certain circumstances, a surviving spouse may transfer a vehicle by affidavit if the vehicle鈥檚 value is $25,000 or less and the required documentation is submitted. There are also narrow situations involving children under the age of 21. For example, if there is no surviving spouse, the affidavit procedure may be available where the decedent is survived by a child or children under 21. Because of these exceptions, some individuals assume that a car will always transfer easily without court involvement. That assumption, however, can lead to complications.

What Happens If You Cannot Transfer a Vehicle by Affidavit?

If there is no surviving spouse, and no qualifying minor child, the DMV affidavit process may not be available. In that situation, even a single vehicle titled solely in the decedent鈥檚 name can require a court proceeding before it can be transferred. Families are often surprised to learn that everything else may have been properly planned, yet one overlooked vehicle now requires court filings, legal fees, and delay.

This issue commonly arises when someone believes they have 鈥渁voided probate entirely鈥� because they created a trust. A trust can only control assets that are properly retitled into it. If a vehicle remains outside of the trust, it does not follow the trust instructions.

Is it a Good Idea to Put a Car in a Trust?

The lesson is not that every car must automatically be transferred into a trust, as each situation is different. Rather, it is that estate planning should include a complete review of all titled assets, even those that seem minor. A brief discussion about how vehicles are owned and whether an exception may apply can prevent unnecessary court involvement later.

Probate is often triggered not by major assets, but by small details that were unintentionally overlooked. Careful review during the planning process can help ensure that a family鈥檚 goal of avoiding court involvement is accomplished.

By Britt Burner, Esq. and Alma Muharemovic聽 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. Alma Muharemovic, Esq. is an associate attorney at 明星黑料, P.C. practice on Estate Planning. 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.

Appointing a Legal Guardian and Managing a Minor鈥檚 Property

A proposed guardian must petition to be appointed to manage the property of the minor. Parents are not automatically empowered to act as guardian and must still petition the Court. If the Court finds the proposed guardian suitable, the guardian receives Letters of Guardianship over the minor鈥檚 property. Once appointed, the guardian must establish a trust which owns the minor鈥檚 property.

Dealing with the Court does not stop there. When the guardian wants to withdraw funds for the minor鈥檚 use, they must petition the Court for approval. Guardians are also responsible for annually accounting to the Court.

Guardian Bonds: Protecting a Minor鈥檚 Assets

Most guardians must be bonded; it is a protective mechanism the Court employs to prevent property mismanagement. The Court issues an order specifying the bond amount. To be bonded, the guardian must contact a聽surety company,聽which will assess their financial stability and determine the premium due. Ultimately, is it up to the Court鈥檚 discretion regarding the bond requirement.

Subtrusts: Structuring Inheritances for Minors

Whether you decide to plan through a last will and testament, revocable trust or irrevocable trust, the minor beneficiaries can inherit in further trust, through a 鈥渟ubtrust.鈥�

If you are naming the minor as a beneficiary of an asset directly with the financial institution, often done with retirement accounts, then you must make sure that you are naming the trust for the benefit of the minor as beneficiary. Beneficiary designations override Will or trust terms so you must be sure your attorney and financial advisors are on the same page every step of the way.

In drafting the documents, you can determine who will serve as trustee and at what age the beneficiary can act as their own trustee to manage the assets on their own.

Planning Ahead Helps Avoid Headaches

Proper planning prevents delays and costs associated with appointing a guardian to manage a minor鈥檚 inheritance. If the appointment of a guardian for the benefit of a minor beneficiary does not scare you, you can abstain from the creation of a trust for minor beneficiaries, but beware鈥� headaches will almost certainly await those who survive you.

By Britt Burner, Esq. and Erin Cullen, Esq.

Britt Burner, Esq. is a Managing Partner, and Erin Cullen, Esq. is an Associate Attorney at 明星黑料, P.C. 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.

What are the Different Types of Timeshares?

Generally, timeshares fall into two categories: leased timeshares (i.e., a 鈥減ersonal property timeshare鈥�) and deeded timeshares (or, a 鈥渞eal property timeshare鈥�). A person with a deeded timeshare owns a specific piece of vacation property, like a unit or a condominium, for a specific amount of time. On the other hand, a leased timeshare is owned by a larger entity, or a company, with an interest in multiple properties; this company will rent out these properties to purchasers of the timeshare as needed. As a result, if you have an interest in a leased timeshare, you will typically stay in a different unit or a different condominium each time you travel.

When Someone Dies, What Happens To Their Timeshare?

Regardless of whether your timeshare is deeded or leased, your timeshare becomes part of your estate after you pass away. While you can execute a Will 鈥� which names beneficiaries, who should inherit your timeshare interest 鈥� those beneficiaries will need to probate that Will through the court system after your death. Probate can often be a time-consuming process, with numerous hurdles to clear before the timeshare can pass through the estate.

Another wrench to consider is that each state and territory has different property laws. This means that a deeded timeshare will require ancillary probate: a secondary probate proceeding, in a separate state or jurisdiction, that begins after probate is complete in the state where the deceased owner lived. Ancillary probate usually entails working with foreign counsel, higher costs for the estate, and additional time navigating the court system.

Can You Keep a Timeshare Out of Probate?

If you own a deeded timeshare, you can set up a Revocable Trust and execute a new deed that transfers the property to your Trust. This makes the Trust the legal owner of the timeshare 鈥� and if your Trust owns an asset, that asset avoids probate entirely. Instead, the terms of the Trust itself will contain instructions, dictating how the timeshare will be transferred after your passing.

Of course, a leased timeshare can also be included in a Revocable Trust. This is typically handled through a document called an Assignment, which transfers the timeshare interest to the Trust. However, since the real property is owned by a separate entity, that company may have its own policy and process for transferring ownership to a Trust. If you want to transfer your leased timeshare to your Trust, it鈥檚 important to contact the timeshare company first to determine which documents they鈥檒l need to move forward, in conjunction with your estate planning documents.

Timeshare Obligations Still Remain in a Trust

Though including your timeshare in your Revocable Trust is a surefire way to avoid probate, it also ensures that the timeshare agreement continues after your death 鈥� including any obligations you may have under it. That means the Trust inherits the maintenance fees, special assessments, and other costs associated with the timeshare interest, so beneficiaries must be aware of these expenses if they wish to use the property.

Whether you鈥檙e looking to purchase a timeshare or you already own one, consulting with an estate attorney is crucial to ensure that you and your family can maximize its benefits. Placing your timeshare in a Revocable Trust will ensure that your property can pass free of probate 鈥� giving you and your loved ones peace of mind.

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

Britt Burner, Esq. is a 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.

Trusts Can Help Avoid Probate

If you die with a Will, your Will must be probated and an executor must be appointed by the Surrogate鈥檚 Court before gaining access to your assets, paying your bills, or making distributions to your beneficiaries. The probate process requires that your heirs-at-law (spouse and children, but not stepchildren) be served with a copy of the Will and sign consents or be given the opportunity to file objections, even if you have disinherited them.

If you are looking to avoid this, a trust may be your answer. The trust can do all the heavy lifting of directing how your estate is handled, but it does not require any notification to your family members or court intervention to empower the trustee to enact your estate plan.

Benefits of Trusts for Blended Families

For blended families, creating a trust can be very advantageous for multiple reasons. Consider the second marriage where each spouse has children from a prior relationship and the intention is for both families to split the primary residence of the couple equally. Without proper planning, when the first spouse dies, the property may pass automatically to the surviving spouse upon the first spouse鈥檚 death. The survivor then has full control over who inherits the property and, intentionally or not, may fail to include the children of the deceased spouse in his or her own estate plan at death.

However, if each spouse establishes a trust which owns half of a property, each trusts鈥� terms can ensure the surviving spouse can use the property for life, and then upon the survivor鈥檚 death, it can be distributed according to each spouse鈥檚 wishes. Since ownership as tenants by the entirety or joint tenants will override any estate planning documents, the deed must also be changed to reflect the fact that one-half of the property is owned by each spouse鈥檚 trust. This can be used to distribute other assets as well.

Talk to an Attorney About the Best Trust For Your Blended Family

The right attorney can help you navigate the distribution of your assets for both your spouse and your biological children. Talking through the proper plan should include a discussion about each asset, where you intend for it to go, and who will be the best person(s) to manage your estate.

By Britt Burner, Esq. and Erin Cullen, Esq.

Britt Burner, Esq. is a Managing Partner, and Erin Cullen, Esq. is an Associate Attorney at 明星黑料, P.C. 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.

Why You Should Put a Vacation Home in a Trust

The better option would be to establish a trust and deed the property into the name of the trust. By doing this, your summer home will no longer be in your name and will therefore avoid probate in both states, avoiding court fees and the time delay associated with bringing the out-of-state proceeding.

Very often, the vacation home is a special place with special memories. This may result in multiple family members wanting to inherit the property and keep it in the family. In these cases more than any others, it is advisable to make it clear who will own the property and who will continue to be responsible for the costs including utilities, real property taxes, capital improvements, etc. It may be appropriate to leave the house in a trust with a sum of money meant for continued support of the property, while in other cases there may be one family member that is given the right of first refusal to purchase the property from the other beneficiaries.

Purchasing a New Property Comes With Crucial Estate Planning Considerations

Leaving instructions in your estate planning documents on how a seasonal property will continue to be used and/or owned after your death, can prevent friction amongst family members and ensure your investment can be enjoyed for decades to come. If you plan on investing in a seasonal property, you should consult your estate planning attorney to update your plan to suit your family鈥檚 goals.

By Britt Burner, Esq. & Erin Cullen

Britt Burner, Esq. is a Managing 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 Does a Medicaid Asset Protection Trust Work?

The MAPT is an irrevocable trust, meaning that it cannot be revoked unless the creator of the trust, Joan, and the beneficiaries agree. Joan鈥檚 children can be the trustees, but Joan can retain the right to remove them from this position as well as the right to change the ultimate beneficiaries of the trust. During her life, Joan can also keep the exclusive right to occupy the premises and will be responsible for the property鈥檚 maintenance, upkeep and taxes, thus not placing any additional burden upon her children.

Fast forward five years and Joan gets the grandkids she has been hoping for and her daughter asks her to move closer to help out. Joan loves the idea, but what about her house?

The trustees can sell the house in the name of the MAPT. Joan鈥檚 children, as trustees, will be responsible to handle the sale including signing the listing agreement, contract of sale, and closing documents. Just as if Joan had kept the house in her own name, a $250,000 exclusion from capital gains tax will apply.

The proceeds of the sale must be deposited in a bank account in the name of the trust; the trust sold the house, therefore the trust gets the proceeds. From there, the trust can purchase a new house to serve as Joan鈥檚 primary residence with the same rules as the prior residence. The protection for Medicaid purposes goes back to when Joan initially put her first house into the trust, so no new clock is set since the assets never left the trust.

If Joan decides to move in with her daughter, the assets can be left in cash or invested within the trust. Depending on how the trust is written, Joan can receive the income generated by those assets. However, in no case may Joan have access to principal from trust assets.

Closing Considerations

When speaking with the elder law attorney, Joan should be upfront about the potential for a move so her concerns can be addressed. It may make sense, if Joan knows what state she

is likely to end up in, for an elder law attorney in the second state to review a draft of the trust to make sure maximum protection can be provided whether Joan ends up needing services from Medicaid in that state.

By Britt Burner, Esq.

Britt Burner, Esq. is a Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. 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.

What Is a Bypass Trust Used For?

While married couples benefit from an unlimited marital deduction (meaning assets can pass to the surviving spouse free of estate tax), this only delays estate taxes until the second spouse passes away. Without proper planning, the surviving spouse鈥檚 estate could face a significant tax bill.

A bypass trust helps avoid this by taking advantage of the deceased spouse鈥檚 estate tax exemption. In 2025, New York State鈥檚 estate tax exemption is $7.16 million. If a couple鈥檚 combined assets are near or exceed this threshold, incorporating a bypass trust into their estate plan is worth considering.

Is a Bypass Trust Necessary in New York?

Bypass trusts are especially important for New York residents for two reasons:

• Use It or Lose It: New York does not allow the unused portion of a deceased spouse鈥檚 exemption to carry over. If it鈥檚 not used when the first spouse dies, it鈥檚 lost.
• No Portability: Unlike the federal system, which allows a surviving spouse to use any unused exemption through a process called “portability,” New York has no such provision.

Bypass Trust Benefits Explained With an Example

Let鈥檚 look at a simplified example: A couple has a combined net worth of $10 million. If the first spouse dies and all assets go directly to the survivor, the survivor’s estate may be subject to tax later. But if $5 million is placed in a bypass trust upon the first spouse鈥檚 death, those funds can grow and be used for the benefit of the surviving spouse, without being included in their taxable estate. The surviving spouse can still access income (and, if needed, principal) from the trust for the rest of their life.

Depending on the couple鈥檚 goals and financial situation, the estate plan can either require that a bypass trust be funded, or allow for flexibility so the surviving spouse and their advisors can make that decision after the first death.

How Cryptocurrency Differs From Traditional Assets

If you die as the owner of this type of asset, it is important that someone is aware that you own the crypto and knows the password to access it. Crypto isn鈥檛 held by a custodian (i.e. a banking institution) the same way traditional assets like a brokerage account are held. The only way to access it is with the proper login credentials or key (password mechanism). In some circumstances, the ability for someone other than the original owner to access the online portal holding the currency can be authorized or prohibited through specific instructions within the portal holding the currency.

Avoiding Probate is Essential for Crypto Holders

The secure and private nature of cryptocurrency is a prime reason to avoid probate in an estate. The probate of a last will and testament requires the will document to be filed with the Surrogates Court whereupon it becomes a public record. And remember, since there is no custodian as with many traditional assets, the appointment of an executor will not help to access and distribute this asset if that person does not hold the access instructions and passkey.

How Do I Transfer Cryptocurrency After Death?

You should consider transferring crypto holdings into the name of a revocable trust. Your documents should include mention of the cryptocurrency, and a separate memorandum should be available to the person handling your estate after death to alert them of its existence and how to access it. Since it is taxable as a piece of property and subject to long term capital gains, it is important that the trustee also have information relating to the cryptocurrency’s cost basis and date of transfer to the trust.

Additionally, the transfer of crypto to a trust should be documented, including a trustee鈥檚 acceptance of the asset. Attention should be paid to your cryptocurrency as you engage in the estate planning process to ensure it properly passes according to your wishes.

By Britt Burner

Britt Burner, Esq. is a Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. 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.

What are the benefits of transferring property to a trust?

There are many advantages to transferring property to a trust despite the potential for a reassessment. For example, many clients choose to transfer their home to a type of irrevocable trust known as a Medicaid Asset Protection Trust (MAPT). An MAPT can protect your home from a Medicaid lien at death should you receive care at home paid for by Medicaid during your life. Additionally, once a property is in the irrevocable trust for five years, the property is no longer considered an available resource when applying for nursing home Medicaid.

Even if your home is owned by an MAPT, rest assured that you will still receive the same real estate tax exemptions that you received when your home was owned in your individual name.

Examples of Real Estate Tax Exemptions You Retain With an MAPT

The NY State School Tax Relief (STAR) program is available where the property is the primary residence of at least one owner. To be eligible, all owners and their spouses who live on the property must have a combined income of no more than $250,000.

The Enhanced STAR (E-STAR) program benefit is available when the home is a primary residence of at least one owner who is at least 65 and the combined income of all owners must be limited to $107,300 or less. Regardless of a homeowner鈥檚 age or income, there are also exemptions available to veterans and those who are disabled.

Irrevocable Trusts Are Powerful Tools

Transferring a property to an irrevocable Medicaid Asset Protection Trust is a great option for those looking to avoid probate and also protect the primary residence if they need to access long term care through the Medicaid program, without necessarily triggering a reassessment or changing your current tax status.

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.

Why the Type of Trust Matters

The type of trust you are establishing is a factor in determining the amount of trustees you want to select. If you are establishing a revocable trust, you will likely be the initial sole trustee, unless you decide to name your spouse or someone else as co-trustee. It should be clear in the document who will act should you lose capacity or upon your death; this can be one person or multiple.

The choice of trustee is more immediate with an irrevocable Medicaid asset protection trust because the creator of the trust must relinquish control of the trust assets from the moment of creation to ensure maximum protection. While you can maintain the right to change the trustee, you must initially decide if you will have one or more trustees serving.

How the Assets in the Trust Impact Your Choice

The assets that you choose to fund the trust with may dictate the best trustee for the job. If the trust is going to hold only real property, you may want to choose a trustee with experience with this type of asset. Similarly, if the trust will hold investment assets, you will want to think about the qualifications of the trustee to manage such accounts. Exactly what goes into the trust can help you determine 鈥渨ho?鈥� and 鈥渉ow many?鈥�

Family Dynamics Are Crucial

Family dynamics may be the most important indicator of who should serve. Co-trustees with the ability to act separately can be a great idea if you think the trustees will work well together. But if you think there may be friction, one trustee at a time may be your best bet. In New York, the default law is that 鈥渕ajority rules鈥� for decisions by trustees when there are at least three trustees, and unanimous decision is required if only two trustees. However, the terms of the trust will control.

You can avoid conflict by including language in your trust that dictates how to resolve specific disagreements. It is best to attempt to avoid conflict altogether because when co-trustees disagree, the beneficiaries of the trust suffer.

How to Avoid Trust Disputes

Careful planning and difficult conversations during life can often prevent difficult disputes after life. No one wants to leave behind a task for people they care about that has the potential to cause disputes. Understanding family dynamics and revisiting them every few years after the creation of the trust can encourage problem solving and teamwork amongst trustees and beneficiaries. Transparency is usually the best route, but you should work with your attorney to overcome potential weaknesses in your estate plan or help mediate once you are gone.

By Britt Burner, Esq.

Britt Burner, Esq. is a Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. 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.