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Estate and Elder Law

New York Practice Guide: Probate and Estate Administration

New York Practice Guide: Probate and Estate Administration provides expert guidance on the essentials of probate and estate administration in New York State.  It has in-depth analysis of state and federal statutes, case law, regulations, and statewide court rules and contains broad-ranging coverage of the preliminary steps of probate and estate administration, settlement of small estates, probate of a will, letters of administration, administration of estate assets, taxation of wealth transfer, accounting of estate assets, and miscellaneous proceedings.  Click the chapter links below to learn more, and purchase by chapter.

Chapter 1: Preliminary Steps to Probate and Estate Administration

This chapter from New York Practice Guide: Probate & Estate Administration provides expert, detailed, guidance, including discussion, checklists and forms for use in the initial steps to be taken in the probate or estate administration of a decedent, including steps relating to disposing of the decedent's body, marshalling assets, and gathering other information relating to the decedent's estate, engaging legal counsel and filing of a will.

Chapter 3: The Validity of the Will

This chapter from New York Practice Guide: Probate & Estate Administration discusses the initial question of whether the person who executed the will had the requisite testamentary capacity. It next outlines the formal requirements for execution of a will. It also discusses the formal requirements for publication of the will and the effect of a disposition to, or appointment of, attesting witnesses. It next covers conflicts of laws determining the validity or interpretation of a will, outlining the requirements of EPTL § 3-5.1 containing the New York rules governing wills having a relation to another jurisdiction. It also discusses the validity of a testamentary provision of a decedent who was not domiciled in the State of New York requiring the disposing of decedent's real property located in New York to be governed by the laws of New York. The chapter outlines legal presumptions courts make as to 1) the mental capacity of the testator, 2) execution of the will in the presence of a disinterested attorney, and 3) duly executed attestation clauses. Finally the chapter discusses what information must be disclosed to the testator if an attorney who prepares a will, or a then "affiliated attorney" or an employee of either of these, is an executor-designee in that will and provides forms for use in having the testator acknowledge that the requisite disclosure was made.

Chapter 4:   Jurisdiction and Types of Probate Proceedings

This chapter from New York Practice Guide: Probate & Estate Administration provides expert and detailed discussion of the New York Surrogate's Court complete jurisdiction over all matters relating to the estates and affairs of decedents under SCPA § 201(3). It includes forms for use in asserting or contesting jurisdiction and venue of the Surrogate Court.

Chapter 15: Guardians Ad Litem

This chapter from New York Practice Guide: Probate & Estate Administration covers appearances for an infant (any person under 18 years of age) by guardians ad litem, as well as for an incompetent (a person judicially declared incompetent to manage his or her affairs) and a conservatee. It also discusses, and provides forms of petitions and of related documents for use in, appointments of guardian ad litem by nomination of an attorney in the case of an infant over 14 years of age. It next discusses appointments by the court under SPCA § 403 if a person under disability does not appear by his or her guardian, committee or conservator, outlining when such court appointments are mandatory, the filing requirements for the appointment, and the power of a Surrogate Court sua sponte to remove a guardian ad litem. The chapter then discusses the qualifications for appointment as a guardian ad litem. The chapter includes a form of the consent and statement. It also describes the duties of the guardian ad litem. The chapter further discusses the reasonable compensation for services rendered a guardian ad litem is entitled to receive. In addition, it discusses the binding nature of an appointment of a guardian ad litem on the person under disability for whom the appointment was made and the limits of this power when the person is of sound mind and body. Finally, the chapter discusses the guardianship and custody of a destitute or dependent child under SPCA § 403-a when it is clear that the natural parent cannot or will not provide a normal family home for the child.

Chapter 28: Disposition of Claims Against the Estate

This chapter from New York Practice Guide: Probate & Estate Administration initially provides an overview of a fiduciary's duty to ensure the estate retains sufficient reserves to pay estate debts and the corollary duty the executor owes to creditors to locate evidence of decedent's obligations. The chapter then sets out the procedure for presenting a creditor's claim. The chapter outlines the procedure required to be followed when a claim is allowed. The chapter also discusses the right of interested parties to challenge the claim. The chapter then outlines the rejection of a claim by either giving notice of rejection of the claim or failing to take action within the prescribed statutory time and the options of a rejected claimant of having the claim's validity determined on judicial settlement of the account or by bringing an action in another court. Further, it outlines the procedures for judicial settlement. In addition, it sets out the procedure and provides forms for use by a fiduciary for petitioning the court for determination of the validity of a claim prior to an accounting. It also discusses the fiduciary's power to settle or compromise the debt or petition the court for approval of a settlement. The chapter next sets out the procedure for setting aside a reserve for a contingent or unliquidated claim. It also sets out the procedure a fiduciary is to follow under SPCA § 1805 in asserting his or her own claim. The chapter concludes by discussing payment of administrative expenses; the priority for payment of debts and funeral expenses of insolvent estates under SCPA 1811; a claimant's options in seeking enforcement of a claim either to obtain leave to issue execution under SCPA 1812 or to maintain a proceeding against the fiduciary under SPCA 2102; and a claimant's remedy of bringing an action against beneficiaries in Supreme Court IF a fiduciary has been discharged.

Chapter 35: New York Estate Taxation

This chapter from New York Practice Guide: Probate & Estate Administration initially considers the relationship between New York and Federal Estate Tax laws. It then discusses when the return must be filed for resident and non-resident decedents, the computation of the tax based on the amount allowable as a credit for state death taxes against the federal estate tax, valuation of the gross estate, and when recalculation of the gross federal estate is required to calculate the gross New York estate. The chapter next outlines the tax procedure applicable to estates of decedents dying on or after February 1, 2000. The chapter also discusses the duty of the fiduciary to pay the New York estate tax. The chapter then discusses when the New York estate tax is due, obtaining an extension of time for filing or payment, interest and penalties, including criminal penalties, that may be imposed for underpayment of tax, undervaluation, late filing, and misreporting of tax. It also outlines the tax New York imposed on generation skipping transfers to the extent the federal generation-skipping provides a credit for state generation-skipping taxes paid. Finally, the chapter discusses the tax lien for estate taxes that attaches on the date of decedent's death, when the lien is released, and a special tax lien that applies to closely held business. The chapter also provides forms of returns, waivers and releases, estate tax power of attorney, affidavits and applications for use in completing the New York estate tax.

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