Estate Probate & Administration

Guiding Executors, Administrators and Families Through the New York Estate Process

The death of a loved one often leaves family members responsible for unfamiliar legal, financial and administrative obligations while they are still grieving. Bank accounts may need to be accessed, property protected, debts evaluated, tax matters addressed and assets distributed. Before many of those steps can occur, the appropriate person must obtain legal authority from the New York Surrogate’s Court.

Abrams Fensterman’s Estate Probate & Administration attorneys provide caring, personal and practical guidance to executors, administrators, trustees, beneficiaries and families. We regularly assist clients with probate, estate and trust administration, contested estates and objections concerning a will or fiduciary conduct. Every family and estate is different, so we tailor our representation to the assets, relationships, court requirements and disputes involved.

Our goal is to shoulder the legal burden, explain each step clearly and help clients move the estate toward resolution while protecting the decedent’s wishes and the rights of interested parties.

What Estate Probate and Administration Services Do We Provide?

Our attorneys assist with:

• Probate proceedings
• Estate administration when there is no will
• Voluntary administration of qualifying small estates
• Petitions for preliminary, limited or temporary authority
• Locating and filing wills, including issues involving a missing original will
• Identifying heirs and beneficiaries
• Obtaining waivers, consents and jurisdiction over interested parties
• Collecting, protecting and valuing estate assets
• Locating and distributing personal belongings
• Reviewing debts and creditor claims
• Real estate and business-interest issues
• Estate and fiduciary tax matters
• Executor and administrator guidance
• Fiduciary accountings
• Beneficiary representation
• Will contests and contested estate proceedings
• Trust administration
• Trust and estate litigation
• Final distributions and estate closing

What Is Probate in New York?

Probate is the Surrogate’s Court proceeding used to establish the validity of a deceased person’s will and authorize the nominated executor to act. The executor generally files the original will, a certified death certificate, a probate petition and other supporting documents in the Surrogate’s Court for the county where the decedent was domiciled.

The petition must identify the individuals who would inherit if there were no will, known as distributees. Those individuals generally must consent to the probate proceeding or receive formal notice through a citation. Beneficiaries named in the will must also receive the notice required by law.

If the court admits the will to probate and approves the fiduciary, it issues Letters Testamentary. Those letters provide the executor with legal authority to collect estate property, address obligations and administer the estate according to the will and applicable law.

What If the Original Will Cannot Be Located?

The absence of an original will can complicate an estate, but it does not necessarily mean that the estate must automatically proceed under intestacy law. New York law provides a procedure through which a lost or destroyed will may be admitted to probate when the required legal proof is established.

The outcome may depend on facts such as how the original was maintained, whether it was last in the testator’s possession, the reason it cannot be located, the availability of a copy and the testimony of witnesses familiar with its execution or contents. If the requirements for admitting the will cannot be met, an administration proceeding under the laws of intestacy may be necessary.

Our attorneys evaluate the available evidence, advise interested parties and represent clients in contested and uncontested proceedings involving a missing original will.

What Happens When Someone Dies Without a Will?

When a person dies without a valid will, the estate is considered intestate. An administration proceeding may be filed in the Surrogate’s Court to appoint a qualified administrator.

The court generally gives priority to the decedent’s closest eligible distributee under New York law. If appointed, the administrator receives Letters of Administration and performs duties similar to those of an executor. However, estate property is distributed according to New York intestacy law rather than personal instructions in a will.

Questions may arise concerning who has priority to serve, the identity of heirs, family relationships, missing relatives or the need for a bond. Our attorneys help petitioners address those issues and complete the administration proceeding.

Can a New York Estate Use a Small-Estate Proceeding?

Certain New York estates may qualify for a simplified process called voluntary administration. Eligibility depends on the type and value of property involved and other circumstances. The Surrogate’s Court appoints a Voluntary Administrator and issues certificates authorizing the collection of listed assets.

A simplified proceeding is not appropriate in every matter. Real estate, possible litigation, disputed heirs, contested wills or assets exceeding the applicable limit may require probate or a full administration proceeding. We evaluate the estate before filing so the family pursues the correct process.

What Are the Responsibilities of an Executor or Administrator?

Executors and administrators are fiduciaries. They must act honestly, impartially and in accordance with the governing documents and applicable law. Their responsibilities may include:

• Securing and protecting estate property
• Identifying and collecting financial accounts and other assets
• Determining the value of estate property
• Opening and maintaining an estate account
• Reviewing debts, expenses and creditor claims
• Managing or selling estate assets when appropriate
• Addressing income, estate and fiduciary tax obligations
• Maintaining accurate financial records
• Providing information or accountings when required
• Distributing the remaining estate to the proper beneficiaries or heirs

Fiduciaries can face personal exposure if they distribute assets prematurely, prefer certain beneficiaries improperly, fail to address taxes or creditors, misuse estate property or neglect their recordkeeping duties. Legal guidance helps fiduciaries make informed decisions and document the administration appropriately.

How Are Estate Assets Identified and Collected?

Estate property may include bank and investment accounts, real estate, business interests, vehicles, valuable personal property, intellectual property, refunds or legal claims. Some assets pass through the estate, while others may transfer by joint ownership, trust terms or beneficiary designation.

Our attorneys help fiduciaries distinguish probate assets from non-probate assets, determine what must be reported to the court and obtain the documents needed to collect or transfer property.

Locating assets and interested parties can itself become a significant undertaking. We assist fiduciaries in identifying accounts, personal property, real estate, business interests, beneficiaries and family members. When relatives cannot be located or family relationships are disputed, additional investigation, genealogy evidence or court proceedings may be required.

How Are Estate Debts, Expenses and Creditor Claims Handled?

An executor or administrator should not assume that every asserted debt must be paid or that beneficiaries may receive distributions immediately. Claims must be reviewed, estate expenses prioritized and sufficient reserves maintained for taxes, administration costs and valid obligations.

When a claim is disputed, we help fiduciaries assess the documentation, negotiate where appropriate and litigate the issue when necessary.

How Are Estate Real Estate and Business Interests Addressed?

Real property and closely held businesses can create added complexity. A fiduciary may need to secure a residence, maintain insurance, determine ownership, obtain valuations, address occupants, negotiate a sale or coordinate with business partners.

As a full-service firm, Abrams Fensterman can draw upon its Real Estate, Corporate, Tax and Litigation attorneys when an estate includes significant property or business interests.

What Does Trust Administration Involve?

Trust administration is the process of managing and distributing trust property according to the governing instrument and applicable law. Unlike a will, which generally directs the disposition of probate assets after death, a trust may govern property during the creator’s lifetime, during incapacity and after death.

A trustee’s responsibilities may include:

• Identifying, securing and valuing trust assets
• Reviewing the trust and determining the beneficiaries’ interests
• Managing and investing property prudently
• Maintaining accurate records
• Communicating with beneficiaries
• Making authorized distributions
• Addressing tax filings and obligations
• Preparing formal or informal accountings
• Resolving claims or disputes
• Terminating the trust and distributing remaining assets when appropriate

Trust administration is generally private, while papers filed in a probate proceeding ordinarily become part of the Surrogate’s Court record. A trust can also provide continuing instructions for property management if the creator becomes incapacitated. Those advantages, however, depend on proper drafting, funding and administration.

Abrams Fensterman advises trustees regarding their fiduciary obligations and represents beneficiaries seeking information, accountings or appropriate distributions. We also handle disputes involving trust interpretation, administration and alleged fiduciary misconduct.

How Can an Attorney Help a Beneficiary or Heir?

Beneficiaries and heirs may need independent advice regarding the probate process, interpretation of a will, timing of distributions, fiduciary conduct or requests for releases and accountings.

We represent beneficiaries seeking information or appropriate action and help resolve concerns before they develop into prolonged disputes when possible.

When Does Estate or Trust Litigation Become Necessary?

Disputes can arise before a will is admitted, during estate or trust administration, or when a fiduciary prepares to make distributions. We represent executors and trustees seeking to carry out the governing documents, fiduciaries defending claims concerning their conduct, and beneficiaries or other interested parties challenging improper administration.

Our attorneys pursue practical resolutions when possible while remaining prepared to litigate contested matters in Surrogate’s Court.

What Issues Can Arise in a Will Contest or Contested Estate?

A will contest challenges whether a purported will should be admitted to probate. These proceedings can be legally and emotionally complicated, particularly when multiple wills exist or longstanding family disagreements affect the case.

Estate disputes may involve:

• The validity or proper execution of a will
• Lack of testamentary capacity
• Undue influence, fraud or duress
• Competing wills
• Objections to the appointment of a fiduciary
• Disputed heirship or family relationships
• Ownership of assets
• Fiduciary misconduct
• Failure to account
• Interpretation of a will or trust
• Disagreements concerning distributions

Common objections may concern whether the will was executed with the formalities required by New York law, whether the testator possessed testamentary capacity, or whether the document resulted from undue influence, fraud or duress. Discovery may include document demands, witness examinations and medical or financial evidence.

Abrams Fensterman represents proponents seeking to admit a will and objectants challenging a will’s validity. We also handle disputes over asset ownership, fiduciary accountings, executor or trustee conduct, removal proceedings and the interpretation or distribution of estate and trust property. Our estate knowledge and broader litigation capabilities allow us to address both the technical and strategic aspects of these matters.

Frequently Asked Questions

How Can You Speak With Our Estate Probate & Administration Attorneys?

Whether you are preparing to serve as an executor, administering an estate, seeking information as a beneficiary or confronting a contested probate matter, our attorneys are ready to help.

Contact Abrams Fensterman at 516-328-2300 to discuss your circumstances.