Question 1: What role does the executor play in the probate process?

A person who writes a Will—called a testator—usually names an executor in the document. Once the testator dies, the executor is responsible for probating the will, meaning he or she must take it before a New York Surrogate’s Court so the court can determine if the Will is valid. The executor is responsible for taking the Will to the Surrogate’s Court in the New York county where the testator lived at the time of death. Once the court determines the Will is valid, it grants the executor the legal right to administer the estate.

Question 2: How much does an executor get paid?

Executors in New York are paid for their services based on the value of the sum of the money the executor pays or receives. Executors receive a commission equal to a percentage of this money ranging from 5 percent for values of up to $100,000, to 2 percent for values of $5,000,000. The testator can also specify how much the executor is to be paid, and may opt to pay a disposition—a non-taxable payment—instead of an executor’s fee.

Question 3: What are the executor’s duties?

The executor has numerous duties when administering an estate. The executor typically makes funeral arrangements and makes sure the testator’s funeral desires are met. He or she must also collect the important documentation associated with the estate administration, such as obtaining the will, birth and death certificates, marriage certificates, insurance policy documents, deeds or property documents, and any number of other paperwork associated with the estate.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

There are certain types of wills, or aspects of wills, that are not suited for every purpose.  A “pour over” will is just such a document. These wills are only necessary for people who have a living trust already established. If you don’t have a living trust, or want more information about them and why they may be of benefit to you, talk to your estate planning attorney.

Function: The idea of a pour over will is to transfer all of your property  into a trust that was created while you were alive. The trust, known as a living trust or an inter vivos trust, already contained some, if not all, of your property. In the event that some of your property is not transferred to the trust before you die, the pour over will does this for you as a catch-all.

Use: Like all wills, a pour over will must meet the creation requirements under state law. Unlike other wills, however, pour over wills usually only name a single beneficiary: the testator’s living trust. Because the living trust already controls much of the testator’s former property, the pour over will  essentially takes the rest of it and transfers it to the trust as well. However, whatever is left after the testator dies must go through the probate process before the trust can own it. This differs from the property first placed in trust, as trusts do not need to be probated before they are effective.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

If you die without leaving behind a valid will, your family typically inherits your property. Which family member receives property, and how much they receive, depends upon your state’s laws, but typically only your closest family members inherit. This includes your spouse and any children or grandchildren you have.

However, if you don’t have a spouse or children, your other relatives may inherit your property as well. These relatives are known as your “ascendants,” and are categorized into two groups: your ancestors and your collateral relatives.

Ancestors: An ancestor is a progenitor, a relative from whom you descend. Therefore, your parents, grandparents, great-grandparents, etc., are all ancestors, but your uncles, great-aunts, siblings and other family members are not.

Collateral Relatives: Those family members from whom you do not directly descend, yet with whom you share your ancestors are collateral relatives. Also known as collateral kindred, or sometimes just as collaterals, this group includes your siblings, cousins, aunts and uncles, etc.

Hierarchy: Every state has a system of laws known as laws of intestacy or intestate succession. These laws usually differentiate your inheritors based on their relationship to you and typically give preference to the closest ancestor, not the closest collateral relative. For example, if you die and leave behind parents and siblings, it is your parents who will inherit, not your siblings. However, more distant ancestors may lose out to closer collateral relatives. For example, if you leave behind only grandparents and siblings, your siblings typically stand to inherit, rather than your grandparents.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

When you create a will and gift property to your beneficiaries, the gifts you make typically fall into one of four general categories. These categories can impact how that property is treated during the probate process, so talk to your attorney for detailed advice about testamentary gift types and how they can affect your estate.

Category 1: Specific gifts. Specific gifts are exactly what they sound like, a specified property bequeathed to a specified person. For example, you may state that your grandson receive your vintage car, or your daughter your lithograph collection. These specifically identified items are specific gifts.

Category 2: General gifts. A general gift is less precise than a specific gift, but has a specific value. For example, you can give your son a gift of $50,000, though any $50,000 from your estate can satisfy the gift.

Category 3: Demonstrative gifts. Demonstrative gifts are general gifts with the addition of a specific source. For example, if you state your son’s gift of $50,000 should come from your savings account, this is a demonstrable gift.

Category 4: Residuary gifts. The final gift category is a catch-all intended to cover the property a testator didn’t otherwise account for. Residuary gifts are typically stated in a will as “The rest shall pass to X,” or “I give the residue or remainder of the estate to Y,” or with similar language. Residuary gifts transfer all the remaining property that the other gifts didn’t include.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

If you’re new to the idea of estate planning and aren’t sure where to begin, there are a number of ways you can go about the planning process. One of the easiest ways is to develop a list of goals you have for your estate plan and then check those goals off as you make progress. Of course, there is no single checklist that applies to everyone, and you should always talk to your attorney to develop a plan that best suits you, but here’s a simple checklist of estate planning goals you can use to get started.

Goal 1: Ensuring your family gets your property. Your estate plan should state in detail how you want your property distributed to your family, friends or others.

Goal 2: Ensuring your children or dependents are cared for. Your plan can set up financial security for those in your care who cannot care for themselves.

Goal 3: Reducing your estate taxes. The amount you leave to your beneficiaries often depends on how much you will have to pay in estate taxes. A good estate plan minimizes estate taxes as much as possible, though you should start planning as soon as possible as estate tax laws can change rapidly.

Goal 4: Avoiding probate. Like estate taxes, it may not be possible to completely avoid probate. You can, however, take advantage of various estate planning options to ensure the probate process is as brief and as easy as possible.

Goal 5: Ensuring your medical wishes are met. An estate plan lets you select what kind of care you want to receive if you’re incapacitated.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Question 1: What is a codicil? A codicil is an amendment to a will. It’s a document you make after you’ve executed a will that changes, adds to, subtracts from, or otherwise modifies the terms of that will. You can, for example, use a codicil to modify the will you wrote before you got married or before you had a new child.

Question 2:  Do you have to register a codicil? No. Just like your will, no state requires that you “register” or otherwise file your codicil with a state government agency. After you die, your codicil will have to be filed with the court and will become part of the public record, but you do not have to file it before then. All you have to do is make sure the codicil meets the state requirements for it to be judged valid by a court. These requirements are the same those for creating a will, meaning you must put it in writing, sign it and have it signed by witnesses.

Question 3: Do you have to use a codicil to change your will? No. A codicil is, like a will itself, completely optional. There is no situation that ever requires you to make a codicil, though they may be useful in a number of circumstances. As an alternative to making a codicil, you may also draft a new will and revoke the previous one. Regardless of your choice, it’s best to talk to an experienced estate planning attorney for advice about what best suits your needs.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Type 1: Revocation by Act. A revocation by act is when you take a specific action to revoke a previous will you’ve written. The most common way to do this is to write a new will that contains a clause that specifically revokes the old will. You may also physically destroy a will to revoke it, such as by burning it or ripping it up.

Type 2: Partial Revocation. A partial revocation is usually carried out by creating either a new will or a codicil that states part of the old will is no longer valid. Many states do not allow for a partial revocation by physical act, so simply crossing out the portions of your will that you no longer wish to apply may not be enough to revoke that part.

Type 3: Revocation by Presumption. A person who makes a will and later dies, leaving no evidence of the will for anyone to find, may have his or her will revoked by presumption. The presumption is that a testator knows the will is important and if it is not easily found, the testator must have destroyed it before he or she died.

Type 4: Revocation by Operation of Law. Most states have laws that automatically revoke portions of your will in certain situations. For example, if you get divorced or have your marriage annulled, any portion of your will that refers to your spouse, or his or her relatives, is often automatically revoked.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Scenario 1: You and your spouse have joint card debt.

If you have a joint credit card and either account holder dies, it’s up to the other account holder to pay back the debt. This is true even if you signed as a co-signer and you never used the card. You’ll be responsible for the entire amount even if the deceased spouse was the one who racked up all the charges.

Scenario 2: You have individual card debt.

If you have an individual credit card, this debt must still be repaid but it won’t generally fall to your spouse to do so. Once you die, all your property, including any debts you have, must get repaid through the probate process. Your estate administrator will notify creditors of your death. After that the creditors have a limited time in which to file a claim against your estate. If they don’t file, they don’t get repaid. Also, if they file and the estate doesn’t have enough money to pay the debt back, they also may not get repaid.

Scenario 3: You are an authorized user on your spouse’s card and your spouse dies.

An authorized user is not an account holder and, like an individual card holder, is not obligated to pay on the card holder’s account even if he or she made the purchases. However, not all credit cards allow “authorized users,” so always be sure you aren’t a joint account holder instead.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

Issue 1: Making a Will. If you have an estate plan that is largely based on one or more trusts, you still need to make a Will so you can select your choice for your child’s guardian. While you can still use trusts and name the child as beneficiary, the guardian nomination must be specifically stated in your Will. If you don’t yet have a Will, you need to get started right away.

Issue 2: A guardian has to be qualified. A legal guardian in New York must be at least 18 years old and must either be citizen or a legal resident of the United States. Beyond that, the person is under no obligation to accept the nomination, meaning he or she can refuse to serve as guardian. Because of this, you should make sure that you ask the potential guardian about his or her willingness to serve. You should also name a pair of alternates in your Will in case the other choices cannot or will not serve.

Issue 3: A court will make the final decision. After nominating the guardian in your Will, a judge will make the determination about who becomes your child’s guardian. Although the court will give your choice a lot of consideration, it will not appoint someone who it believes will not serve your child’s best interests. Once the court makes its decision, it gives the guardian “letters of guardianship” that establish his or her guardianship rights.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.

It typically takes some time for the law to catch up to changes in technology and society. For many of us, we have online profiles, accounts, or bill payments that play a major part of our life. But how do we take care of these assets if we are incapacitated or transfer them after we die? It’s a question that we need to address carefully when developing an estate plan.

Part 1: Reviewing Your Online Existence. What do you have online? Is it a Facebook account or a Twitter account that you don’t use very often? These assets may not require you to take a lot of preparatory steps. But what about an online bank account? What if you only pay your bills online? The more complicated and important your online existence is, the more steps you’ll need to take.

Part 2: Preparing Your Digital Assets. A good practice to ensure your online assets are properly taken care of is to first collect everything you have. A list of all your online accounts, profiles, settings, and every digital property you have is a necessity. You’ll have to include the passwords and access information and make sure they are categorized so each can be dealt with properly.

Part 3: Transferring Your Digital Existence. You’ll have to ensure there is someone who can take over your online bills, manage your accounts, and be able to access them without a problem. A power of attorney can help you do this, as well as make specific gifts in your will. Talk to your Estate Planning attorney for more detailed information about this process.

The Law Office of Michael Robinson, P.C. is a member of the American Academy of Estate Planning Attorneys.