THE LAW OFFICES OF
LENORE S. DAVIS, P.C.
   
       
 
 
 
 
 
   
 
   
  Definitions  
 

Probate

Probate is the process after the Testator dies, by which the Will is filed with the court, is verified that it is the true Will of the Testator, and the process by which the Executor/Executrix is appointed representative of the estate. The Will is filed with a petition which provides pertinent information to the Court regarding the Testator.Some other documents you might need are the Testator's certified death certificate (with a raised seal), a copy of the death certificate of the spouse, if one dies before the other, or a copy of the divorce decree, if divorced. Different courts have different requirements.

After the Court is certain that the Will is a true copy of the Testator's wishes, the Court will issue Letters Testamentary. It is with these Letters Testamentary that you will go to banks and other financial institutions to receive money from the Testator's accounts. You will also need this document to transfer title to all the Testator's property, including home and car.

*Please note that it will be easier for you if you order many certified copies of the death certificate from the Funeral home and Letters Testamentary from the Court.

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Intestacy

When a person dies without a Will, he is considered to have died Intestate. This means that an Administrator/Administratrix will have to be appointed legal representative of the estate.

Under New York State Law (SCPA §1001), Letters will be granted in the following order:

  • The surviving spouse;
  • The children;
  • The grandchildren;
  • The father or mother;
  • The brothers or sisters and so on.

There are, of course, exceptions to the rule and other circumstances which might cause a different result.

The property would be given to the following people (EPTL §4-1.1):

If the testator is survived by:

  • A spouse and children: $50,000 and one-half of the estate, after the debts are paid, to the spouse, with the balance going to the children;
  • A spouse and no children: everything to the spouse;
  • Children and no spouse: everything to the children;
  • One or both parents, and no spouse or children: everything to the surviving parent(s) and so on.

Once again, there are, of course, exceptions to the rule and other circumstances which might cause a different result.

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Wills

  • Last Will and Testament or Will: A document by which goes into a effect when the Testator dies. In it, the Testator disposes of all his property.
  • Living Will: In states which provide for Living Wills, a person can create a document which sets forth in detail what health and medical procedures he wants performed, in the event he becomes incapacitated or unable to state what his wishes are at the time.
  • Testator/Testatrix: The person who creates the Will.
  • Executor/Executrix: The person who is appointed to represent the estate, follow the terms set forth in the Will, files tax returns for the estate and collects the property of the estate for distribution to the beneficiaries.
  • Beneficiary/Beneficiaries: Those people who are given money or property in, or who otherwise benefit from the Will.
  • Intestate: A person who dies without a Will.
  • Guardian: The person who has physical custody of minor or handicapped children.
  • Trustee: The person who holds money and property for the benefit of another person, a minor child or incompetent person.
  • Probate: It is the process, after the Testator dies, by which the Will is filed with the court, is verified that it is the true Will of the Testator, and by which the Executor/Executrix is appointed representative of the estate.
  • Letters Testamentary: The document issued by the Court, which certifies that the Executor/Executrix has been appointed and may act as legal representative of the estate.
  • Administrator/Administratrix: When there is no Will, the Court will appoint an administrator/administratrix to act as legal representative of the estate.
  • Letters of Administration: Similar to Letters Testamentary, it is the document issued by the Court, which certifies that the Administrator has been appointed and may act as legal representative of the estate.

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Estate Taxes

  • Taxable Estate: That property which is subject to taxes. Please understand that even if you did not have a probate estate, your estate can still be a taxable estate. It includes, among other things, property which was held jointly, insurance policies, houses, bank accounts, brokerage accounts and gifts that were given by the deceased person within three years of his death.
  • Probate Estate: Only that property which the decedent owned in his own name only, or as a tenant in common with someone else. Those assets held jointly with the right of survivorship or by the entirety (special only to married couples), by operation of law automatically run to the joint owner, and need not go through probate. Please note that although said joint property does not have to go through probate, the entire value of the joint property is placed as if the first to die owned it entirely and taxes have to be paid on the entire value of the asset.
  • Lifetime estate tax credit: It is the total amount of money which the government allows you to transfer in your lifetime and at death tax-free.
  • Stepped up basis: The fair market value of the decedent's assets as of the time of his death, versus the value of the assets at the time the decedent purchased said assets or was gifted said assets.

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Trusts

  • Trust: A Trust is where title to property is held by one person (the trustee) for the benefit of another person (the beneficiary).
  • Trustee: The person who holds the property for the benefit of another person.
  • Beneficiary: The person who receives the benefit of the property held in a Trust.
  • Donor/Grantor: The person who creates the Trust and puts the property in a Trust.
  • Intervivos Trust/Living Trust: A Trust that is established while the Donor is alive.
  • Testamentary Trust: A Trust that is drafted into a will and is established after the Donor dies.
  • Revocable Trust: A Trust which can be revoked at any time while the Donor is alive.
  • Irrevocable Trust: A Trust which cannot be amended or revoked.

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Health Care Proxy and Power of Attorney

  • Health Care Proxy: A document which appoints a Health Care Agent whom you would like to make health care and medical decisions for you in the event you become incompetent or incapacitated and cannot state what you yourself want.
  • Power of Attorney: A document which sets forth whom you would like to make financial decisions, sign checks, pay bills etc. on your behalf.
  • Durable Power of Attorney: Generally, when one becomes incompetent, his legal documents become invalid or unenforceable. A Durable Power of Attorney has a provision which states that the document will not become ineffective if the creator of the document becomes incompetent.
  • Living Will: New York does not have Living Will statutes and laws. In states that do have these laws, a person can create a document which sets forth in detail what health and medical procedures he wants performed, in the event he become incapacitated or unable to state his wishes at the time.
  • Attorney in Fact: The person appointed under a Power of Attorney to take care of your finances or certain financial transactions.
  • Health Care Agent: The person appointed under a Health Care Proxy to make health care and medical decisions for you in the event you become incapacitated or incompetent.

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Pet Trust

A pet trust is a legally sanctioned arrangement that provides for the care and maintenance of one or more pets in the event of their owner’s disability or death. The person who creates the trust is commonly referred to as the ‘settlor’. The person who is entrusted with the funds is called the ‘trustee’. A trust can take effect either during a person’s lifetime or after their death. Typically, a trustee will hold property (cash, for example) “in trust” for the settlor’s pet or pets. When the time comes, the trustee will make payments on a regular basis to a designated caregiver. In some states, the trust may continue for the rest of the animal’s life or for 21 years, whichever comes first. Other states allow a pet trust to continue for the rest of the animal’s life without regard to the 21-year limitation. This is especially advantageous when planning for companion animals such as horses and parrots, who have longer life expectancies than cats and dogs.

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