What Does a NY Estate Lawyer Do?
An estate lawyer’s expertise should not lie only with the preparation of a last will and testament. In addition to drafting complex estate planning devices, an attorney specializing in estate law in NY will also have experience in the process of probate, which may include challenges to will and trust instruments.
As with the ancient saying “you get what you pay for,” opting for a general practitioner may cause you or the estate to lose large sums of money in the long run, than the cost of hiring an experienced estate attorney from the start. Lawyers with little or no experience in estate law, as well as companies providing legal document preparation services (non-lawyers), are eager to sell you services you do not need, or in the worst case scenario – deliver documents that fail to comply with New York State laws, hurting your loved ones in the end. If a lawyer’s fee is significantly below the market rate, there is probably a reason why. If estate attorneys in the area are charging $500.00 for a will, and the next lawyer you speak to quotes you at $150.00, stop and think what is at stake before you run with a check in hand. The following are some of the common services an estate lawyer in NY can provide.
Probate a Will in NY
If you have tried to seek advice from the Surrogate’s Court on how to proceed as the executor named in a will, chances are that you were instructed to “hire a lawyer” without receiving any substantial advice. Although clerks of the Court can tell you the type of forms needed for probate, they are forbidden to give legal advice. As the executor you may well decide to proceed on your own. As the process gets unmanageable you may decide to seek legal representation from an estate lawyer familiar with probate procedure. Hiring a lawyer is not mandatory and some executors will not need to retain a lawyer in order to successfully probate a will in NY. If the estate you are managing is a small estate and the assets are insubstantial, you may be able to proceed on your own without legal representation.
The sequence of events connected to the probate of a will varies on the law of the state where the estate is opened. In order to commence a probate proceeding in New York, the decedent must have been a resident of the state at the time of death, the decedent died outside of the state but had every intention to return to New York State had he or she not died, or the decedent owned real estate in the state. There are two different types of estate proceedings in New York depending on whether the deceased died with or without a will. If no will of the deceased can be found, an administration proceeding, rather than probate, must be commenced. Since there is no will that names an executor, a personal representative called an “administrator” must be appointed by the court. The administrator is typically a family member but can be a public administrator if no family members step up.
When representing the executor or administrator of an estate in NY, the estate lawyer will provide the following services:
- Find and secure assets of the deceased (probate and non-probate assets);
- Evaluate the date of death value of the decedent’s assets for income tax purposes;
- Draft and file all petitions, affidavits and necessary documents for the Surrogate’s Court in an expedited and timely manner;
- Ensure that all parties of interest are included in the probate papers and receive proper service of the proceeding;
- Assist with the sale of real estate previously owned by the deceased;
- Assist with the sale of personal property (ie antiques, vehicles, businesses);
- Collect any life insurance proceeds of the deceased;
- Defend against any creditor claims against the estate;
- Advise the executor on paying any of the deceased’s outstanding bills;
- Negotiate with creditors to accept a settlement offer of a lesser amount than due;
- Assist the executor with applying and obtaining a bond if the Surrogate’s Court requires;
- Assist with opening an estate account and paying necessary bills of the estate;
- Set up special needs trusts for minors and disabled beneficiaries;
- Defend against any challenges to the will;
- Resolve conflicts between the executor and the beneficiaries;
- Pursue legal action for wrongful death or personal injury on behalf of the decedent;
- Assist with the real estate closing of a real property of the estate;
- File motions for various actions;
- Re-title real property into the names of the beneficiaries if parties decide not to sell;
- Distribute the balance of the estate account and assets after paying creditor claims and bills to the beneficiaries as outlined in the will;
- File income tax returns on behalf of the decent;
- Assess if any federal and New York estate taxes are due;
- File an accounting with the Court and settle estate.
Have family members been excluded from the will? Is someone hinting at a will contest? Is a surviving spouse entitled to less than one-third of the estate in the last will and testament of the deceased?
In the recent years, will contests have become not the exception but the common norm. If someone such as a family member or a domestic partner of the deceased is alluding to suing the estate or challenging the terms of the will, contact an estate lawyer in NY immediately. Will contests and lawsuits against family members within probate can tear loved ones apart and results in the dissipation of estate assets. Involving an estate lawyer early in the process can possibly prevent a bitter battle among heirs.
It is important to note that not all probate lawyers practice in the field of estate litigation. While the probate of an estate for the most part consists of minimal court intervention, estate litigation, on the other hand, involves motions, hearings, depositions, and trials. Attorneys that undertake estate litigation matters often defend executors, trustees or the beneficiaries of an estate from a lawsuit within the probate proceeding or represent heirs in challenging the last will and testament of the decedent or a trust executed by the deceased during his or her life. If there is tension between the executor and the beneficiaries or the beneficiary barely knows the nominated executor, a probate lawyer can act as an intermediary amongst parties resolving disputes early on.
An estate planning attorney can draft your last will and testament outlining your wishes upon death, prepare a power of attorney in the event you become sick and cannot manage your financial affairs, and have you execute a health care proxy in the event that you cannot make your own medical decision.
Consider the following two examples of Angela, an elementary school teacher in her early 50’s. Angela is a divorced with no children. Her parents passed away and the only family member she has remaining is her estranged sister Anna. The two siblings have not spoken for over a decade due to the fact that Anna stole hundred of thousands of dollars from their parent’s estate when they passed away. Angela has finally found Adam, the love of her life, and they are expected to wed in one month. In a tragic set of events, Angela suffers a stroke on the way to work and is transported to the hospital in critical condition. In the first example, Angela never got around to making a will, power of attorney or health care proxy. Being that Angela and Adam are not married and Angela has no health care proxy appointing someone to make medical decisions on her behalf, the power to make decisions defaults to Anna as the next of kin. Considering Angela’s net worth of over half a million dollars, and her strong dislike for her sister, Anna decides to forego all recommended medical procedures. With due time Angela dies, and Anna inherits her entire estate. Adam is left with a broken heart and no part in his fiancé’s estate.
In the second example, Angela has a will in which she leaves her entire estate to Adam, her power of attorney names Adam as her agent, and in the event Angela cannot make healthcare decisions, Adam has the power to do so under her health care proxy. Adam loves Angela very much so he takes advantage of the medical procedures recommended by the doctors. Angela recovers and while she is bedridden for two months, he pays her monthly mortgage, real estate taxes, and bills using his authority as a power of attorney. Anna never comes into the picture. Had Angela not survived the surgery, Adam would inherit her entire estate leaving Anna in the dust.
Having the proper estate planning documents will help you prevent the first example when the unfortunate strikes. An estate planning lawyer will carefully guide you in implementing the proper devices so you can maintain your health and financial affairs in the event of incapacity and establish a method of distribution upon death. In the second example, if Adam did not have a power of attorney, he would have to go through the court system and establish a guardianship over Angela in order to gain access to her bank accounts to pay her bills. While the preparation of a power of attorney can cost a few hundred dollars, the guardianship process in NY will cost thousands of dollars in legal fees.
Estate Planning Services
The following are some of the common services a NY estate planning attorney can provide:
- Prepare a legally comprehensive Health Care Proxy appointing an agent to act on your behalf to make medical decisions in case that you cannot;
- Prepare a legally comprehensive Power of Attorney appointing an agent to act on your behalf in case that you cannot act;
- Prepare a legal Will complying with NYS formalities;
- Prepare a Trust document to avoid probate and/or manage assets after death or incapacity;
- Prepares a plan to reduce or eliminate federal and NYS estate taxes;
- Create Medicaid Asset Protection Trusts to qualify for Medicaid;
- Prepare special needs trust for disabled beneficiaries so they do not lose government benefits;
- Assist in transferring pension plans, insurance policies, stocks, interests in businesses and partnerships, real estate and/or personal property into trusts or LLC’s.
- Safeguard assets from creditors and estranged family members;
- Prevent the possibly of guardianship proceedings over minors or disabled loved ones;
- Gift real property and personal property to the people you love in the way that you see fit;
- Protect assets from nursing home claims;
- Assist you in filling out Medicaid applications;
- Elder law services.
Not everyone has the same goals. Goals vary. While most people wish to leave their entire estate to family members, others do not. While some people may want their children to manage their estate upon their death, others may not trust their daughter or son to do so. The way that you decide to allocate your wealth is ultimately up to you. An estate planning lawyer can explain the different options available for your specific situation and ensure that your wishes will be satisfied according to the standards and formalities of New York law. Estate planning measures are legal documents that must meet the stringent formalities of the state.
The Qualities to Look For in an Estate Planning Lawyer
A lawyer focusing on general practice usually does not have the particular knowledge and experience to properly advise you and assist you with your financial matters and family situation. When seeking legal help with your estate, try to find someone who dedicates their law career to estate law. If an attorney’s website has ten different practice areas listed, chances are that they are a general practitioner not an estate lawyer. When you finally find the right lawyer to represent your interests, it is very important that you feel open to sharing family details and concerns, no matter how intimate, with your lawyer so your estate planning documents do not fall short of your anticipations and wishes.
How Much Should You Expect to Pay for Your Estate Plan?
Estate planning should not come cheap. You should expect to pay higher lawyer fees in preparing your estate plan by someone who specializes in estate law, rather than a general practitioner. When paying an estate lawyer dedicated to the area, you are paying for security and a peace of mind. You are paying for a lawyer who has handled cases like yours in the past and has learned how to safeguard against likely issues that may arise. Dedicate the time and money to find and retain an experienced estate planning lawyer in your locality. In the long run, you and your intended beneficiaries will be happy that you did.
Elder Law Services
Imagine having your assets that you worked so hard to accumulate over your lifetime depleted in one year. Unfortunately this is what happens to two out of three people in the U.S. during a long stay in a nursing home. The way that this is possible is that nursing homes are very expensive. The average monthly tab is about $10,000 to $14,000. Most health insurance does not cover nursing home stay and you will be directed to apply for
Medicaid. The truth about Medicaid is that they will pay for your nursing home care only after you have no assets left to pay for your care. To illustrate, if you own a home and have 100k in stocks or bank accounts, you will be forced to use your 100k first, and in the last resort Medicaid will step in and pay your nursing home bills. Although you will not be forced to sell your home in order to satisfy your health care bills, Medicaid will go after your estate upon death and force the sale of the home if there is no money in the estate to satisfy their claim.
An elder law attorney can help you qualify for Medicaid although you may be able to pay for your own healthcare. With the proper estate planning tools, people no longer have to give up their life savings to qualify for government assistance. The need for nursing home care often comes unexpected. Planning ahead is always the smart choice no matter how old you are. With careful estate planning, Medicaid assistance can be readily available to anyone no matter their tax bracket. The idea of retiling assets into someone else’s name is dangerous and can qualify you for Medicaid fraud. Medicaid is known for thoroughly investigating such transfers and applying stringent measures against the transferring party. An elder law attorney, also known as an estate planning attorney, can help you transfer assets into lawful vehicles without any penalties.
The following are some of the common services a NY elder law attorney can provide:
- Medicaid Planning;
- Medicaid Applications;
- Medicaid Appeals & Fair Hearings;
- Medicaid Asset Protection Trusts;
- Asset Protection;
- Irrevocable Trusts;
- Pooled Trusts.
Contact Your Estate Lawyer in NY
You can contact our law firm, Mishiyeva Law, PLLC., today with any estate or probate questions you may have. Our number is (646) 233-0826 and our contact email is Kamilla@MishiyevaLaw.com.