After-Death Probate and Administration

When a person dies, it is important to both secure his assets and transfer these assets. The actions taken might have tax implications so that it is important to consult a professional.
Tip : The funeral parlor will order death certificates for you. Although there is a charge, I suggest that you order 12 or more certificates. You will need these for the court. You will also need death certificates to claim the proceeds of joint or trust bank or brokerage accounts, life insurance and retirement accounts.
What do I do if my parent had a Will? The family should immediately try to locate the Will. The Will determines who will be the Executor and how the assets will be distributed. Before the Executor can act, however, the will must be presented to the Surrogate's Court, together with a Petition and the death certificate. When the Petition is accepted, Letters Testamentary will be granted to the Executor(s), giving him/her the power to collect and distribute assets.
What if my parent died without having made a Will? : If there is not a Will, the Surrogate's Court will appoint an Administrator to take charge, and the assets will be distributed in accordance with a plan that the state has put into place for persons who die without a will (legally this is referred to as dying "intestate").
What if my parent had only a few assets in his/her name? If a person dies owning property having a gross value of $20,000.00 or less in his own name, the court considers it a Small Estate and appoints a Voluntary Administrator. The petition process is simplified
What is the role of the Executor or Administrator? If there is a will, the Executor is responsible for collecting and distributing assets in accordance with the will. Before he can act, he must petition the Surrogate's Court and be granted Letters Testamentary. If there is no Will, the Surrogate's Court will appoint an Administrator. He/she will receive Letters of Administration empowering him/her to collect and distribute assets. in accordance with the law of the state.
COMMENT: Our office works with Executors and Administrators to petition the Surrogate's Court and to complete the notice requirements inherent in the petitioning process. We then work with the fiduciary to transfer the assets to the estate and to distribute the assets.
What if an Executor or Administrator resides outside of New York State or outside the United States? A person can serve as Executor or Administrator if he/she resides in the United States (even if the residence is outside of New York State). But. . .if the the Executor or Administrator resides outside of the United States, he/she must have serve with someone who is a U.S. domiciliary. We have worked several with Executors and Administrators residing out of the United States and we can advise you on how to proceed.
What assets do you report to the Surrogate's Court? If the deceased held his assets (bank account, brokerage accounts, home, etc) in joint accounts, trust accounts or pay on death accounts, these will pass to the joint owner or the named beneficiary without these assets passing through probate or administration.
Furthermore, if the deceased had life insurance or retirement plans with a beneficiary designation, these pass directly to the beneficiary without court involvement. If there is no beneficiary designation or the named beneficiary has died or renounced, these assets will probably be part of the probate estate (unless there is a contingent beneficiary).
Important: Even if the deceased held all his assets in a form that they passed without court intervention (for example, all assets passed through joint accounts, trust accounts, or beneficiary designation) these assets might be subject to either a federal or New York State estate tax. Consult an attorney or an accountant.
Tips: Notify Social Security of the death.
If the deceased received Medicaid, consult an attorney before making any estate distributions.
If a beneficiary receives SSI or Medicaid, consult an attorney before making distributions to this person. Our office has been successful in protecting the inheritance with no disruption in Medicaid or SSI.
If the deceased had an IRA, consult an attorney immediately. If the deceased is already taking distributions, it is important that the annual required distribution is taken and other procedures are completed in a timely manner.
Make a list of all persons who will receive an inheritance, with names addresses and telephone numbers. If the deceased is survived by a spouse or children, include information on these persons. If not, list parents, siblings and children of predeceased siblings.
Check for Unclaimed Property of the deceased. We find that disabled and ailing persons often fail to deposit dividends, etc. Most states have an depository for property that has gone unclaimed for three years.
COMMENTS: I assist Executors and Administrators to petition the court and to administer the estate. I have helped beneficiaries who live in the United States and abroad to claim their inheritances. Sometimes I have advised a beneficiary to renounce his inheritance. Renunciation might be appropriate when it is a taxable estate, or when there are other family, personal or financial circumstances. If there is a possibility that a beneficiary might renounce, consult an attorney immediately before claiming the assets. Once a beneficiary takes control of an asset, the ability to renounce might be lost. Furthermre, there are definite time limits within which a beneficiary can renounce.