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Regina Kiperman
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I will listen and help you build a roadmap to accomplish your goals
I will listen and help you build a roadmap to accomplish your goals

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To Probate - or Not to Probate? That is the Question. Below may be the Answer 

Suzy died in Brooklyn, New York last week. She was survived by her five children. Suzy’s youngest daughter, Laura, claimed that she was in possession of Suzy’s original Will. The other four children were shocked and surprised to hear this because Suzy always told them that she didn’t need a Will as she intended for everything to be spilt equally among all of the children. Laura filed the Will with the Court. She did not file a probate petition because she was not listed as the Executor. 

Laura told her brother, Jason, that he should file for probate because he was listed as the executor. Jason consulted his remaining siblings and Jason, along with the remaining siblings, decided that they did not want to offer the Will for probate. Instead, they wanted to take the position that Suzy didn’t leave a Will and therefore, seek Letters of Administration. 

There are several instances where the Court may issue Letters of Administration despite the existence of an instrument purporting to be a Will. Examples are:
1. When the distribution scheme under the Will is the same as without a Will (the Will gives equally to all of the children and the children would get equally without the Will) and the expense of probating the will is too great relative to the size of the estate because of a technical issue with the Will (difficulty in locating witnesses and no self-proving affidavit). 
2. When the distribution scheme under the Will is different than without the Will but all of the parties (both beneficiaries and distributees) consent and the Court is satisfied that no useful purpose would be served with a probate proceeding.
3. When the sole beneficiary is also the sole distributed who wants to avoid probate costs.
4. Where the Will has not been probated within a reasonable time or the probate proceeding has not been diligently pursued. 
5. Where all of the disposition set forth in the Will have lapsed for some reason

It is important to review the dispositive provisions of the Will and gauge the steps necessary to probate the instrument in order to determine whether to proceed with probate, or whether, it may be more efficient and economical, to simply set aside the will and seek Letters of Administration. 

Additional resources provided by the author

For more information, please contact estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@gylawny.com
Or visit her at her new location:
Grimaldi & Yeung LLP
80 Maiden Lane
Suite 304
New York, NY 10038

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING
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Owed money from a dead person?
File a Claim Against the Estate

Harry and Jesse were friends for many years. During the last year of Jesse’s life, Harry spent a small fortune taking care of Jesse. Harry paid for Jesse’s home care aides, bought Jesse food, paid for Jesse’s travel to and from the doctors, and even paid for a portion of the funeral. After Jesse died, Harry added up the expenses and saw that he had spent well over thirty thousand ($30,000) dollars on his good friend. Could he be reimbursed for his expenses, he wondered?

Article 18 of the New York Surrogate’s Court Procedures Act allows for a creditor to be reimbursed for debts and funeral expenses.

The claim should be in writing, contain a statement of the amount of money due and contain a statement of what the money was used for. The creditor should also include a sentence indicating that they have not been paid for any portion of the claim that they are presenting. 

The claim should be presented to the fiduciary of the estate within seven months after the appointment of a fiduciary (executor, administrator, temporary administration, or preliminary executor). The statute requires that the claim be presented either personally (hand delivered) or sent by certified mail, return receipt requested to the address that the fiduciary provided to the court when he applied to become a fiduciary. 

Once the claim has been properly presented, the fiduciary has 90 days to accept or reject the claim. If the fiduciary accepts the claim, then the fiduciary will pay the creditor, usually at the time of settlement of the estate. If you don’t hear from the fiduciary within 90 days, then you can assume that the claim has been rejected. 

If the fiduciary rejects your claim, you can ask the Court to determine the validity of your claim. You would file an Order to Show Cause and a Petition and ask the Court to order the fiduciary to pay the claim. The Court would decide the claim as part of the accounting proceeding. 

Summarily, Harry can seek reimbursement for his expenses and should follow the procedures outlined in Article 18. 

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Additional resources provided by the author.

For more information, please contact estate planning attorney Regina Kiperman

Phone: 718-238-6960
Email: rkiperman@gylawny.com

Or visit her at her new location:
Grimaldi & Yeung LLP
80 Maiden Lane
Suite 304
New York, NY 10038

This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.
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Come see me speak at 2PM tomorrow about all things Estate & Medicaid Planning hosted by +Astoria Bank 489 Neptune in Brooklyn! It's free and I promise to entertain. 
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Thinking about trusts? See if a “Lifetime” (or Revocable) Trust is for you. 

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Joe’s parents both died this year.
The only asset in their estate was their home (not this home).
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