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New York Probate

Probate in New York State refers to a legal proceeding conducted in the Surrogate's Court for the purpose of validating the decedent's last Will and judicially appointing the executor named therein to administer and settle the estate. The New York Law Firm of Mitchell Wilensky is experienced in filing New York probate proceedings, and in interpreting nuances of New York probate law. Whether an estate needs to be probated depends entirely on the nature and size of the decedent's assets. Ask our firm about your particular situation. Providing guidance in estate and probate matters enables our firm to serve families of decedents by alleviating conflicts, and unburdening the family which would otherwise wade through a tremendous amount of paper in an area which requires frequent contact with beneficiaries, the witnesses to the Will and the Clerks of the Surrogate's Court.

Our firm routinely represents clients in probate proceedings in the following New York Surrogate's Courts: New York (Manhattan), Bronx, Kings ((Brooklyn), Queens, Westchester, and the Long Island counties of Nassau and Suffolk. Over the years, we have also handled probate cases in other counties in New York State. While New York probate laws are intended to be uniform, each Surrogate's Court has local probate rules. We are familiar with the local probate rules and can process a probate proceeding in all New York counties.

Probating a Will is the first step in any estate administration. Once the Will has been located, the Executor must make sure that the probate is handled quickly and efficiently, and the best way to do this is to hire counsel such as the Law Firm of Mitchell Wilensky who is well versed with probate and Surrogate's Court procedures. Although an Executor is not legally required to obtain the assistance of an attorney to probate the Will, he or she would be well advised to do so. New York requires that all beneficiaries and fiduciaries named in a Will as well as all of the decedent's distributees (those who would benefit if there were no Will) be notified that the Will is being submitted to probate. Any person who would be adversely affected by the probate of the Will is given an opportunity to appear in Court and object. Such a person may sign a waiver and consent form indicating he or she consents to probate. In most cases, no one has any objection to the Will, and as long as the Surrogate believes that the testator's last Will was properly executed in accordance with New York law, it will be admitted to probate and the person or persons named therein appointed Executors. In some instances the witnesses to the Will may be required to testify that the Will is valid.

Estate Administration [Top]

The legal services required in processing a person's affairs after death is the area of law known as estate administration.

Estate administration is one of the core practice areas of the Law Offices of Mitchell Wilensky. The firm's familiarity with the day-to-day operations of the Courts and the taxing authorities allows it, in most cases, to expedite and simplify the estate administration process. Generally, the estate administration process can be divided into the following stages:

  • Initial Court Proceeding: probating the Will in the Surrogate's Court, or if the person died without a Will (intestacy), filing an "administration" proceeding in the Surrogate's Court.
  • Nuts and Bolts Estate Administration: collection, inventory and valuation of assets; sale of decedent's real estate and other assets; record keeping and computerization, raising cash requirements, payment of expenses, debts and legacies, filing of income tax returns, including fiduciary income tax returns, filing of Surrogate's Court inventory.
  • Estate Tax Returns: preparation and filing of the Federal estate tax return; preparation and filing of the New York estate tax return; post-mortem estate planning, including disclaimers, renunciations; selection of a tax year for the estate; timing of distributions; QTIP elections, alternate valuations, excess deductions on termination; the generation skipping tax; preparing and handling of audits.
  • Accounting & Settlement: preparation of fiduciary's accounting - judicial versus non-judicial accountings; final distributions of estate assets and payment of commissions; finalizing all aspects of the estate.

Beneficiary Rights [Top]

Rights of Beneficiaries and Heirs in New York Estates:

The New York Estate, Probate & Inheritance Law Firm of Mitchell Wilensky is sensitive to the disharmony that can arise among a decedent's surviving family members when their loved one's personal belongings, real estate and investments are being distributed. If you are a beneficiary of a New York estate, you have the right to information about your loved one's estate and how it is being administered. We understand that the loss of a loved one can be a very emotional time and these emotions can cause even the closest of families to have conflicts with one another.

Sometimes our representation merely consists of pro-active monitoring and auditing of the performance of the fiduciary in order to see if the fiduciary is complying with his or her duties and responsibilities. Other times, legal remedies are necessary in order to protect the interests of the beneficiaries. We have helped beneficiaries in New York and throughout the United States assert their rights in New York estate including:

  • Beneficiaries who were not advised of the nature and scope of the decedent's estate
  • Heirs who have been waiting an inordinate amount of time for an estate fiduciary to initiate the process of distributing assets
  • Beneficiaries who wish to challenge fiduciary misconduct, fraud or mismanagement
  • Beneficiaries who find out that the terms of the will were not followed by the fiduciary
  • Beneficiaries who find out that assets were wrongfully transferred or misappropriated prior to the decedent's death

An executor or administrator has a duty to administer the estate for the benefit of the beneficiaries in accordance with the laws of the State of New York. Unfortunately, this does not always occur. Sometimes they intentionally try to deny a beneficiary what is owed. Other cases come down to a simple matter of mismanagement or lack of understanding. Many cases fall in that gray area in between, where the facts and explanations are not clear, or do not add up. In all of these situations, the beneficiaries have been denied what is owed them.

What are my rights as a beneficiary?

  • An estate beneficiary is entitled to a copy of the estate's "List of Assets-Inventory" which the fiduciary is required to file with the Surrogate's Court. This document summarizes the assets comprising the gross estate, listing both the probate and non-probate assets of the decedent valued as of the date of death.
  • An estate beneficiary is entitled to an accounting from the fiduciary of the estate listing the estate's assets, income, debts, expenses, taxes and distributions.
  • A beneficiary is entitled to receive their inheritance in a timely manner. The length of time will depend upon the complexity of the estate.
  • A beneficiary can commence a proceeding requesting the Surrogate's Court to remove the fiduciary if there is a judicial finding of fiduciary misconduct.

The New York Estate, Probate & Inheritance Law Firm of Mitchell Wilensky represents beneficiaries and heirs living in New York City, Long Island, upstate New York, as well as throughout the United States who believe that their rights as beneficiaries are being compromised, or at the minimum, not being addressed. If you are a beneficiary in a New York Estate matter, please contact us to discuss your case and the rights that you may have under New York law.

Estate Litigation [Top]

For over 35 years, the Law Firm of Mitchell Wilensky has successfully represented litigants in contested estates. The firm has been involved in leading cases, including a landmark case in the New York County Surrogate's Court regarding the right to a jury trial in a proceeding to invalidate a lifetime trust, as well as a litigated administration case in an estate of a victim of the September 11th terrorist attacks. (See the "Reported Cases" section of this website.)

Typical estate litigation handled by the firm in Surrogate's Court includes:

  • Will Contests (Contested Probate Proceedings): The Law Firm of Mitchell Wilensky has handled countless will and trust contests in New York County, Kings County (Brooklyn), Queens County, Bronx County, and Long Island (Nassau and Suffolk Counties). In some cases this representation involves defending a decedent's will or trust from a contest, in others, the representation involves protecting and enforcing the rights of disinherited heirs. Before a New York State Surrogate's Court determines the validity of a will and admits it to probate, the Court must be satisfied that the instrument is genuine, that it was validly executed, and that at the time of the execution the decedent was competent to make a will and free of restraint.
  • Fiduciary Misconduct: Breach of fiduciary duty proceedings are commenced when a beneficiary of an estate objects to the actions of the executor or administrator. Under certain circumstances, families may properly accuse an executor, administrator or trustee of failure to properly distribute estate assets, of stealing benefits owed to heirs or beneficiaries under the terms of the will or trust, or mismanagement of an estate. The Law Firm of Mitchell Wilensky has over 35 years of experience in both defending and prosecuting claims of fiduciary misconduct.
  • Surviving Spouse Litigation: Exercising a surviving spouse's rights in an estate (right of election and right to spousal exempt property), or in the alternative, disqualifying or limiting the surviving spouse's inheritance rights.
  • Accountings: Judicial settlement of executor and trustee accounts, or in the alternative, filing objections to a fiduciary's account to protect the rights of beneficiaries or creditors.
  • Wrongful Death: Prosecution and judicial approval of wrongful death recoveries in automobile, construction, aviation or boating accidents, medical malpractice.
  • Kinship: A kinship proceeding is the judicial process by which an alleged heir seeks to establish his/her relationship to the decedent. Proof of kinship may arise in any number of Surrogate's Court proceedings, including an administration proceeding where a party is either petitioning for letters of administration, or is attempting to disqualify such a petitioner on the ground that he/she lacks the requisite status to receive such letters. Kinship issues also arise in accounting proceedings when a Public Administrator accounts and seeks to have the estate assets distributed where there is no will (intestacy), and requests the Court to determine the decedent's heirs.
  • Contested Administration Proceedings: The Law Firm of Mitchell Wilensky has handled numerous cases involving disputes over the appointment of the fiduciary of an estate when the decedent died without a will. A party to an administration proceeding may object to the appointment of an administrator on the ground that an heir is ineligible to serve under section 707 of New York's Surrogate's Court Procedure Act, or that the person forfeited the right to share in the decedent's estate and is therefore disqualified from becoming the estate's administrator.
  • Miscellaneous:
    Will construction proceedings – judicial clarification of will provisions
    - Fraudulent Transfers – invalidating pre-death asset transfers
    - Power of Attorney Contests – misuse of a power of attorney
    - Discovery proceedings – ascertaining whether property belongs to an estate
    - Enforcing or disputing claims against an estate
    - Invalidating trusts

Call the Law Offices of Mitchell Wilensky at 1-800-842-7040

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Mitchell Wilensky - New York Estate Probate Inheritance Attorney: The estate, probate and trust law attorney, New York City, Manhattan, Bronx, Queens, Brooklyn, Nassau, Suffolk, Long Island, Westchester probate & estate attorney, estate administration & settlement lawyer, New York inheritance law & inheritance disputes, estate litigation, contested estates & trusts law office, New York Long Island probate, New York kinship hearings - representing heirs, administering estates and trusts, probating wills attorney, estate tax returns, estate & trust accountings, executors & trustees, or other legal information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer or attorney client relationship. Any results set forth here were dependent on the facts of that case and the results will differ from case to case. Please contact our New York inheritance, probate, trust and estate law office - New York, NY. Attorney Advertising.