Probate and Estates

PROBATE – ESTATE ADMINISTRATION

Here is information about what you can expect with estates.

Estate administration requires painstaking attention, detail and formality.

We recognize you hire us because a close family member or friend has passed. We sympathize with you and will give you courtesy and respect.

Problems and Duties: Estate administration has the potential for conflict. Various problems arise during estate administration. You are a fiduciary, a person that holds a high trust. It can be detailed and extensive. You answer to the Court for all your actions.

If there is no Will, an Administrator must be appointed by the Court. All interested parties must be notified. If there is a Will, an Executor will be appointed by the Court after proper service and notice to all interested parties. In either case, there may be individuals that contest the appointment process.

Once an Executor/Administrator has been appointed, the estate management begins. The general duties of an Executor/Administrator are primarily to settle and distribute the decedent’s estate. This usually requires the Executor/Administrator to collect securities, sell property, convert assets into cash, pay debts and expenses and distribute whatever is left to those entitled.

This sounds very straightforward, doesn’t it? However, you must use diligence and care to preserve the estate assets and prevent loss. A complete inventory of the decedent’s assets and financial affairs must be made. The number of jobs could get long.

You must provide an accurate accounting, for tax , and for the beneficiaries of the Estate and the Court.

You must act in the best interest of the estate. Other individuals involved with the Estate may disagree with your actions. Any problems that arise will be dealt with by you and us.

Creditors have seven (7) months from date of the death to file a claim against the estate.

After collecting and marshalling assets and payments to creditors, some Estate tax might be due. If so, tax returns will be filed. Unless the Estate is large, tax may not be a consideration. At any rate, the tax determination will be made and should be paid promptly to avoid interest and penalties. In the interim, there may be assets earning money, such as bank accounts or real estate. These assets must be managed until they are distributed.

Additional forms may need to be filed depending on how long the Estate stays open.

If a child or someone else involved with the proceeding cannot act, it is likely a guardian ad litem will be appointed by the Court. This appointment is to insure the interests of the child or disabled are protected.

The duties of the guardian ad litem (who must be a lawyer licensed in New York) are to protect the interests of the child or disabled. Usually the guardian ad litem does not represent you. The guardian ad litem is a court ordered and supervised officer.

If payments are made to anyone other than a surviving spouse and/or if any payments are due to a child or disabled, an accounting of the Estate might be necessary to discharge your duties. If so, you must file this accounting. We help you prepare the accounting.

Your account sets forth the property received, the disbursements made, and the balance on hand for distribution. The accounting must show the assets were administered and distributed properly. You must render a full and accurate account of all your actions.

Once the account is complete, a copy is sent to everyone interested. They usually must sign a receipt and release to discharge you. If anyone objects to your account, you go to Court to get a release from the Judge.

We can’t predict what will happen with your estate. As with all things in life, some things are easier to deal with than others. Our advice to you will be based upon our knowledge and experience in dealing .

Counsel Fees: The New York State Legislature, and the Surrogate’s Bench and Bar, provides lawyers with guidelines for legal fees. The fees charged sometimes represent a percentage of the estate. An attorney usually charges an amount equal to an Executor’s or Administrator’s commission. Sometimes we may charge legal fees on an hourly basis.

Often we do not charge by the hour in handling an estate as quoting Estate of Snell and Matter of Brehm, the “time clock approach, however necessary or appropriate in some fields, is, most certainly, not that to be exclusively employed in the case of high professional skills directed to complex problems involving, among many other factors, the acceptance of heavy responsibility commensurate with the subject of the retainer, and the utilization of advanced education and long experience.”

“The factors to be considered in the fixation of attorney’s fees (by the Court) are the difficulty of the questions involved; the skill required to handle the problems presented; the lawyer’s experience, ability, and reputation; the amount involved; the benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved. (Matter of Freeman).

However, depending on the size of the Estate and the (potential) problems involved, sometimes an hourly charge is called for and we’ll let you know of our intent to charge an hourly fee.

After reading this letter we will ask you to sign a retainer agreement/engagement letter. Then we can get started on the work. After that, copies of all communications, correspondence, documents, papers, and otherwise will be provided to you as the matter progresses.

We appreciate being selected as attorney to represent you. You have trusted us to act in a position of fidelity, morality, and integrity representing you. We thank you for your courtesies and confidences extended.