How do you compel a will? When the decedent leaves a will to an executor, but the executor chooses to not do anything with the will, then many assets cannot be accessed with the production of the will. In that event, many third parties request the executor to produce the will. What happens if they refuse?
If you are a person who receives under the Will, fiduciary, or guardian of the person who receives under the Will, a creditor, any person entitled to letters of Administration, the public administrator, or a party to an action to be brought, then you can Petition to Compel the Production of the Will.
The proceeding begins with a filing of a Petition, and Order to Attend and be Examined and the payment of the a Filing fee of $20. The contents of the Petition should include:
When you file the Petition, you must go to the Court that has jurisdiction over your decedent, known as the county where the Decedent died. The Court will then review the documents to make sure that all is in the correct form. If so, then the Court will then contact you with a signed Order.
When that is complete, you may then serve the signed Order along with the Petition upon the “respondent” or the person you want to examine. The Order will direct the manner of service and set the deadline by which service must be completed.
On the return date the person was Ordered to appear has to come to court, and the examination can take place in the Court house after the Calendar call. If that person demonstrates that they are in possession of the Will, then they will be Ordered to place that Will on file with the Court immediately.
Have you ever wondered how your estate’s assets would be distributed once you are gone? Perhaps you have drawn up a Last Will or Living Trust. But, what if you die without leaving a will or an estate plan? That’s where probate comes in.
It’s the legal way that the estate of the decedent gets settled under the supervision of New York probate court. The whole probate process begins with the appointment of an estate representative or executor -- a person nominated by the deceased’s Last Will (usually a surviving spouse/child) or someone appointed by the court if there’s no Will. Once named, the executor will have legal rights to collect and appraise all the assets owned by the deceased estate, pay off accrued debt, bills, taxes, and, eventually, distribute the remaining assets to the beneficiaries or heirs.
Of course, the entire probate process is far more complicated than that. For starters, it can take up to nine months of back and forth in the court, and cost oodles of money in the process. So, why is probate necessary?
The primary goal of probate is to keep fraud at bay once someone dies and allow ample time to probate the will. It freezes the estate so that the judge can ascertain the validity of the Will, as well as make sure that all relevant parties are notified, that all assets have been identified and valued, and that all applicable taxes, bills, creditors, etc. have been duly paid. Not all estates, however, have to go through probate.
When is Probate in New York Not Needed?
When the Estate is a “Small Estate”
If the total value of an estate is under $30,000, it’s taken as per NY law to be a “small estate,” and doesn’t have to go through probate.
When All the Assets are Not Subject to Probate
Certain types of assets are not subject to probate in New York and can be transferred automatically to beneficiaries upon someone’s death. Such assets include joint tenancy assets, tenancy by the entirety, beneficiary designations (life insurance policies, etc.), TOD, POD, and brokerage accounts.
When there’s a Living Trust
If the decedent had drawn up a Living Trust to hold his or her assets, the surviving beneficiaries and heirs would not have to go through the harrowing probate process.
Important Steps in Probate Process
There are three critical steps in the probate process.
Phase I: Petitioning for Probate
This phase starts with filing a petition to the probate court. The objective of this step is to convince the court to issue a decree validating the Will as well as appoint an executor of the estate (if there’s no Will).
At this stage, the executor will gather, determined, and make an inventory of all the deceased’s assets -- and then submit it to the court for review within six months of his or her appointment. It’s the responsibility of the executor to settle any debt and pay all bills and taxes associated with the estate. Once done, the executor will then file a petition with the court to close the probate.
Phase III: Distribution, and Closing the Estate
Once the court satisfied, it then orders the executor or estate representative to distribute the remainder of deceased’s assets to the right heirs and beneficiaries. The executor is legally entitled to a statutory fee which he or she can take or forfeit.
Understanding Estate Planning Costs
Estate planning is the perhaps the smartest move you can ever make to safeguard your loved ones after you pass on, and ensure your care in case of incapacity. The truth of the matter is that estate planning is not a cheap affair. In fact, a recent survey confirmed that more than 66 percent of Americans consider estate planning to be out of their reach.
If you have been putting off the idea of planning your estate, the chances are that you are concerned with the associated costs. So, how much does estate planning actually cost? Right off the bat, I must confess that the cost of an estate plan can vary significantly depending on a number of factors, including whom you choose to be your attorney.
The trick to keeping estate planning costs low is to start small and bring in additional features later. If you want a basic estate plan, for instance, start off with a combo of Healthcare Durable Power of Attorney (popularly referred to as healthcare PA) and Durable Power of Attorney. As you might expect, this package will not give your family 100% peace of mind.
Take It Up a Notch
Once you’re ready to take the next step, it’s high time to add beneficiary designations, Paid on Death and Transfer on Death Accounts, as well as beneficiary deeds. The good thing about these additional estate planning documents is that they’ll help your loved ones inherit your estate without the need to go through probate process (which is a huge headache).
To make sure that estate transfer is as smooth and hassle-free as possible, it’s also wise to add a well-structured Last Will and Testament. These two documents will go a long way to protect your loved ones and make sure your assets to go the right person at the right time without the interference from courts and judges.
Revocable Living Trust
For most people, including a Revocable Living Trust is the last step in estate planning. And for good reason. RLT is not only one of the most complex documents in estate planning, but it can also become quite expensive to draw up.
All in all, drawing up an estate plan is a significant financial undertaking. All of the documents above are complex in their own right, and even a slight mistake can jeopardize the whole Trust. If you want to get a good picture of how much estate plan will cost you, however, it is important to seek counsel from a reputable estate planning attorney.
4 Secrets to Saving On Estate Planning Costs
Tip #1. Talk About the Fees Up Front
Most estate planning attorneys offer a free, no-obligation consultation. Even before you go to this meeting, call or email your potential attorneys to inquire about what and how much fees they charge. Most attorneys charge a flat-rate fee or by the hour. If he or she charges by the hour, for instance, inquire further about the rate and get an idea of how long the process will take.
Tip #2: Get to Know What You Need
Before you meet with an attorney, it pays to get a feel for what you need in your estate plan. It might be helpful to consult with your financial advisor or read up on estate planning material. Either way, be sure to know a little about the durable power of attorney, healthcare durable PA, last will, testament, and perhaps trusts.
Tip #3: Be Decisive and come Prepared
Inquire about what you need to bring to the attorney. Do you have to pay for an initial consultation? Will you pay the attorney fees up front? Get answers, but most importantly, meet your attorney when you are fully decided.
Tip #4: Hire the Right Attorney
Not all estate planning attorneys are created equal. Get recommendations from friends, family or colleagues you trust. And don’t just take their word for it -- it’s best to read reviews, contact references, etc. before making the hiring decision.
Living and breathing estate law is the epitome of my life. It all started when I was a kid growing up in Queens, NY next to the Surrogate court. That is when my fascination with estate & probate law began. It made me realize that this legal field is one of the most important ones in existence. Unlike other legal fields, this one deals with more than just money, it deals with spirituality. That is because peoples religious and idealistic beliefs will play a big roll on how they plan for their future.
For example, in Judaism and Islam, men play a more dominant role in inheritance. This means that by default the assets goes to the men and on the woman. Although in many Jewish homes it is decided beforehand by the parents that the boys will inherit and then pass the girls half by means of a "present" this way they can fulfill the tradition to inherit the boys. In Islam, the men dominate the inheritance fields and it does not seem like there is a "de-facto" roundabout maneuver to get the money to the girls (like in Judaism). Moreover, in religious households where there is no will or instruction what to do, they will be required to go to a local religious authority to decide how to divide the assets. This means that internally the local probate laws will not make a difference to a family where everyone holds strong religious beliefs.
Again, whether religious or not, this all leads to the bottom line understanding of how important it is to plan your estate and avoid probate (whether religious or not). Time and time again I saw families where no will was left trying to understand estate & probate law at the Queens Surrogate court. They looked like their lives were in shambles and it's all because their family did not take time to speak to an estate, elder or probate attorney when they were still alive.