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.

Myth 1: Only rich people need, or can afford, an estate plan. This myth comes from the idea that only people with lavish homes, lots of money in the bank, and long lists of personal property can afford to hire an attorney to design an estate plan. People with fewer possessions don’t need to worry because there isn’t much to distribute anyway, right? Wrong. Everyone can benefit from a good estate plan. Even if you only want to make sure your medical choices are followed, or that you want your property to go to specific people, you can make an estate plan that fits your needs and your budget.

Myth 2: Only old people need an estate plan. Young people don’t have to worry about it. While it’s true that seniors without an estate plan have a more pressing concern than younger people, even the youngest adult can use an estate plan. As long as you are at least 18, you can benefit from estate planning. Your needs are different than seniors, parents or others, but you can still use an estate plan to set your wishes in place and ensure they are followed.

Myth 3: I can make it and forget about it. Wrong again. Though you’re way ahead of the game if you have created an estate plan, you need to think about it like a muscle. If it atrophies, you’ll not get much use out of it. On the other hand, if you review it periodically and make changes as needed, you’ll get the most value out of it and can rest assured your plan is complete.

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

The co-executors of Huguette Clark’s $400 million estate have recently been removed by the New York Surrogate’s Court after allegations arose claiming the two men had committed tax fraud in their handling of the estate. Manhattan Surrogate’s Court Surrogate Kristen Booth Glen removed the two men and left the managing of the estate to attorneys working for the Office of The Public Administrator of New York County, whom she had previously appointed as a third estate administrator.

The allegations that ended up costing attorney Wally Bock and accountant Irving Kamsler their positions claimed that the men had failed in numerous duties, and had engaged in such activities as making false statements to the IRS, filing false tax returns and failing to pay taxes on gifts Ms. Clarke had made. The impact of the alleged wrongdoing may end up costing the estate as much as $90 million in fines and unpaid taxes.

The judge suspended each man from the estate, a position that would have earned them each about 2 percent of the estate’s total value, or $8 million each. The allegations against them encompass actions they took over the last 15 years as they acted to manage Ms. Clarke’s affairs. The heiress died in May of 2011 at the age of 104, leaving behind a still unfolding drama that has lead to numerous court challenges and revelations about the life of the reclusive heiress who had lived the past several decades secluded in a New York hospital room.

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

Many people neglect to create a will during their lifetime.  They just assume that their affairs will always be taken care of as they wish.  The truth is, you have no control without a will in place; and, you will likely find that your true wishes aren’t respected. Take a look at the information below, to better understand what happens to your assets if you don’t have a will.  If you have any questions, or if you’d like to create a will, contact an estate planning attorney.

If you choose not to create a will, 3 important decisions will be made for you.  For example, your state’s intestacy laws will determine how your assets are distributed.  Each state has its own laws in place as to how assets are divided among legal heirs; these laws were created to offer a fair and common way of distributing assets, but they may not follow everyone’s wishes.  Your wishes may not match your state’s laws.

Once you die without a will, your affairs are handled in probate court; the probate court will appoint a guardian for your minor children and will also appoint an administrator to settle your estate affairs.

If you’d like to have full control over how your assets are distributed and want to make sure that the wrong people aren’t given an inheritance, then you need to take the time to execute a will.  If you want to choose who raises your minor children and who has access to your personal and financial information, execute a will.

An estate planning attorney can work with you to make the planning process easier and less stressful.  Take advantage of the ability to have full control over your affairs and don’t allow your state laws and the court to decide your personal business.

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

Many estate planning tools are set up to allow property to avoid probate.  Why?  Probate Court can not only tie up property for months, even years, but it can rack up fees and costs as well.  Property that avoids probate is called non-probate property, and it generally falls into three different categories:

• Transfers by Title: Assets transferred by title include property owned in joint tenancy with the right of survivorship, such as a house that is jointly owned by a married couple.  It is important to know the form of ownership for property, particularly when it comes to estate planning, as property jointly owned as a tenancy-in-common has no rights of survivorship and is considered probate property.
• Transfers by Contract: Assets transferred by contract include life insurance policies, 401K and retirement plans, and any other asset that has the owner declare a beneficiary to receive it upon the owner’s death.
• Transfers by Trust: If the deceased has created a trust, the trust will generally contain provisions regarding transfer of the property at the time of death.

Title to these non-probate assets passes automatically at death without any Probate Court proceeding. While ownership transfers automatically, certain steps may be required to have the property released or retitled to the new owner. A certified copy of the death certificate is usually required and additional documentation may be necessary.

If a person has arranged for a non-probate transfer of ownership through title, contract, or trust, this certainly does not mean that a will is not needed. Not only will it still be needed to distribute probate assets, but a will is necessary to name a guardian for minor children, as well as an executor to administer the estate.

An estate planning attorney can best advise you on the estate planning strategies that allow property to avoid probate, while creating an estate plan to meet your family’s needs and goals.

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

Many people hear the term “probate” when taking the time to plan their estate, but they usually aren’t quite sure what the term really means.  It can be confusing to understand the probate process, as well as how probate planning fits in with your estate planning.  Did you know that probate can be avoided?

Did you know…?

• If you have no estate plan or a simple plan (only a will) and you own assets in your individual name, your affairs will be handled through probate court when you die.
• If you have a will, it’s validated and used to determine how your assets will be distributed, who will handle your affairs, and who will care for your minor children.
• Without a will, the court will appoint a guardian for your children and an administrator to handle your affairs.  Additionally, your state laws (i.e. NY) will determine how your assets are distributed to beneficiaries.
• The probate process can take several months, to over a year.  Since probate takes a long time, your beneficiaries will not receive their assets for a significant time period. This is why many people plan to avoid probate.
• If your affairs are handled through probate, your personal financial information, as well as your beneficiary contact information will be made public.  This is because probate records are public records which anyone can access.  If you don’t want others to learn about your financial affairs or private matters, you may want to avoid probate.
• Probate is expensive.  The legal, executor, accounting, and court fees can quickly add up.  Additionally, if you own assets in more than one state, you will have ancillary probate in that state as well.
• There are many ways to avoid probate.  You can discuss each option with your estate attorney.

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

If you’re planning your estate and creating your will, you will have to choose a reliable executor to handle your estate’s affairs.  It’s important to understand the duties that are required of an executor, so that you choose a trusted helper who is capable of handling all of your affairs.  Take a look at some of the information below, to better understand the responsibilities of an executor.  If you have any questions, or if you’d like help choosing an executor, contact an estate planning – probate attorney.

• An executor is responsible for organizing the estate.

Your executor will be responsible for finding important estate planning documents, determining what assets are part of the estate, and locating assets.  This can be a lengthy process and will require a lot of hard work.  Throughout the process, it’s important for your executor to remain organized with good records.  This will allow the probate process to be handled more smoothly.

• An executor is responsible for probating the estate.

Once the executor locates the will and has an idea of what is part of the estate, he or she must go through the probate process.  Your executor will be responsible for following all court orders.  During the probate process, your executor will be responsible for handling all financial affairs of the estate, including paying debts and taxes.  He or she will also have to communicate with beneficiaries while handling the estate’s affairs.

When choosing an executor, make sure that he or she is willing and able to handle all of the duties that lay ahead.  Your executor should be honest, reliable, organized, and responsible.  It’s important to carefully make this decision so that your affairs are in good hands.  If you have any questions about the duties of an executor, or if you need help selecting an executor, consult with a qualified estate planning attorney.

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

You need to name back up trusted helpers in your estate planning documents because as life rockets along, people and circumstances change.  For example, the trusted helper you named to raise your minor children may not be able to serve when the time comes.

Jan was a single mom.  She had a great relationship with her only sister, Becca.  So, when Jan had her two children, Elle and Eric, she named Becca as their guardian in her will.  Becca carefully considered the responsibilities and accepted.

Jan died of ovarian cancer about 7 years later.  Becca had died of the same disease just 2 years before, but Jan never updated her will and there was no back up guardian appointed.

If no one stepped forward to take Elle and Eric, they would be placed into foster care.  They would stay in foster care until they each aged out at 18.

If family members do step forward, there is likely to be a battle with life-long scars and anger.  And, the court will decide who will raise the children, not Jan.

Surely, this is not what Jan would have wanted for Elle and Eric.  It all could have been avoided if Jan would have named a back up guardian in her will.  When you consider how this lack of back up guardian will affect Elle and Eric for their lifetimes, you can see the vital importance of estate planning.  Estate planning is not just a pile of papers.

Be sure to name:

• Back up guardians in your will
• Back up executors in your will
• Back up trustees in your trust
• Back up agents under your health care power of attorney
• Back up agents under your financial power of attorney

If you have any questions about how to choose back up trusted helpers, consult with a qualified estate planning attorney.

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

When you think of estate planning, most of the time the first thing that will come to mind is finding methods that will help keep your estate out of probate. It’s true that in many cases this is the best for the family and the estate, but in some cases probate might actually be beneficial.

For most small to medium estates, probate can easily be avoided and is also unnecessary in many cases, but with larger estates there may be some benefit to letting the estate go through probate. The main benefit that an estate receives from probate is that it will be under court supervision so there must be an accurate account of the debts and assets in the estate.

When someone passes away, creditors have the right to put a claim against the estate for whatever amount that the deceased owned, but it is also not too uncommon for creditors to put bogus claims against an estate. If the estate is in probate, each creditor will have to provide proof that the debt is legitimate before they will be awarded payment of that debt. Another advantage is that creditors will only have a certain amount of time to submit a claim against the estate; if they fail to do so, they cannot come back later to collect on the debt.

With large estates that have a lot of debts and assets, as well as family members that may not be in complete agreement about how the estate should be settled, probate can actually be a good thing.

Of course, there are some disadvantages to probate, which is why many people try to avoid it. The main disadvantage being that your will and your assets will become a matter of public record that anyone can review. If you prefer privacy for your heirs, you will certainly want to avoid probate. Additional problems that tend to come with probate are the amount of time that it takes to probate an estate, and the expense. It can take months, and even years, to settle an estate through probate, especially if someone is contesting the contents of your will.

Before you decide how you would like to put together your estate plan, it is best to contact an attorney experienced in this area of law to find out what your options are and what makes most sense for your situation.

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

There could be any number of reasons why you might want to amend your will. Possibly you have changed your mind about who your beneficiaries will be, or you have added significant assets to your estate and must change your will to reflect your changing situation.

At one time, it was common for people to simply go to an attorney and have their will amended to reflect the changes that they wanted, but today this is no longer practical for many reasons. The first being that the laws change on a constant basis and a will that was drafted years ago will not likely reflect the changes in law. If you must change your will, it only makes sense that you will want to accommodate the changes in law as well.

Another reason why an amendment may be a bad idea is that a will with too many changes may have problems when it comes to probate. It can create significant problems if the probate court has difficulty deciphering what the deceased wanted due to the fact that there have been so many amendments that the entire will is unclear.

In addition, the cost of drafting a new will may not be significantly more than an amendment, especially if you must make changes to reflect the changes in law. With there being little difference in cost, it doesn’t make a lot of sense to make amendments to your will, as opposed to drafting a new one. When you draft a new will, you can be sure that it reflects any changes in law, and it will clearly state what your last wishes are.

Drafting a new will could save your family a lot of expense and headache later. If there are changes that you feel need to be included in your will, it is best to contact an attorney experienced in estate planning and probate law to find out if it would be in your best interest to draft a new will.

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