Probate Attorney Long Island, New York

A probate attorney helps by making sure the estate assets are distributed as provided by a will. The probate attorney assists the Executor or Executrix in getting the will probated.

Where the decedent executed a will, the will is probated or proven to be the validly executed instrument of the decedent to the court’s satisfaction. In New York, wills must follow the Estates Powers and Trust Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA).

The probate or estate administration attorney presents the decedent’s will with original signatures to the court. The court opens up a file for the decedent’s estate. The court will require a petition for probate signed by the Executor and either served on each distributee or a petition where the distributee waives service of process and consents to probate. Very often the court will also require an affidavit of heirship establishing the decedent’s family tree.

A decedent’s assets do not need to go through probate if they are titled in the name of a revocable living trust. While this saves the probate filing fees of about $1,000.00 for most estates, there is a cost to transfer assets into a revocable living trust particularly in the case of real estate. In some states, Florida in particular, transferring a principal residence into a revocable living trust voids the homestead exemption and the protection it provides against creditors attaching that asset. There are other cautions in using revocable trusts to avoid probate. Titling cars into them may cause problems with car insurance. Titling stock in a Sub-chapter S Corp. into them may cause a termination of the Subchapter S status and additional corporation income taxes as a result.

The probate attorney also assists the Executor in marshalling the decedent’s assets (retitling them) in the name of the estate. The marshalling of assets process usually involves the probate attorney sending a copy of the Executor’s authority to act on behalf of the estate upon each bank or financial institution holding the decedent’s assets. In New York State, these are called Letters Testamentary. The probate attorney then files any federal or state estate tax returns required to be filed. The probate or estate attorney also makes sure that final income tax returns and fiduciary income tax returns are filed for the estate if it has earnings during the administration period.

The probate attorney should then file an inventory of assets with the court showing the decedent’s assets and liabilities after any and all required estate tax returns and income tax returns have been filed and paid. The probate attorney then prepares a schedule for each estate beneficiary of their estimated distribution after all estate expenses and liabilities have been satisfied which is delivered by him to each beneficiary. Finally the probate attorney prepares a receipt, release, and waiver discharging the Executor and other fiduciaries of the estate with the court.

David Kass, J.D. C.P.A.

Located in Roslyn, Nassau County, David N. Kass serves the Greater New York area, Brooklyn, Queens, Staten Island, Manhattan, the Bronx, and especially Long Island, Nassau and Suffolk Counties.

Please contact Kass & Kass to schedule a consultation. A brief introductory consultation is available for a nominal charge.