RES PUBLICAE

Why Do I Need A Last Will and Testament?

Christopher L. Miller — Tue, 16 Sep 2008 00:36:15 +0000

You need a Last Will for many reasons. Even if you do not have a Last Will, you have an estate plan. That plan is laid out by New York’s intestacy statute, which provides the order in which your relatives will inherit your estate if you die without a will. If you are survived by your spouse only, your spouse will inherit your entire estate. If you are survived by your spouse and children, your spouse will inherit the first $50,000.00 of your estate, and the remainder will be split equally between your spouse and children. This provides the first reason why you should have a Will. (more…)

What are Distributees? Why are they important?

Christopher L. Miller — Mon, 11 Aug 2008 22:08:59 +0000

If you interact with an estate attorney, you may hear the term distributee. In New York, the term distributee has a legal meaning set out in Estates Powers and Trusts Law Section (EPTL) 1-2.5. The statutory definition is “A distributee is a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.” The statute refers to EPTL 4-1.1, which sets forth the persons entitled to inherit from a Decedent when there is no Last Will and Testament.

EPTL 4-1.1 sets forth the distributees as follows: (more…)

Definition - Intestate

Christopher L. Miller — Sun, 20 Jul 2008 03:03:22 +0000

Nope, it’s not a highway. Intestate (or intestacy) means that a Decedent has died and has not left a Last Will and Testament to be admitted to probate. The New York Estates, Powers, and Trusts Law Section 4-1.1 sets forth those persons who are entitled to the estate of a Decedent who died intestate. Thus, everybody has an estate plan in place, even if a Last Will has not been executed.

Note - The statute may not reflect how you would want your estate to be distributed. It is best to consult with an attorney to discuss your estate planning, and not leave your estate plan in the hands of Albany.

Definition - Testate

Christopher L. Miller — Wed, 16 Jul 2008 02:57:37 +0000

Testate means that a Decedent has died leaving a Last Will and Testament to be admitted to probate.

Definition - Decedent

Christopher L. Miller — Mon, 14 Jul 2008 02:56:02 +0000

A Decedent is someone who has died.

Definition - Administration

Christopher L. Miller — Tue, 08 Jul 2008 02:51:02 +0000

Administration is a judicial proceeding similar to a probate proceeding. The major difference is that an Administration is undertaken when the Decedent did not execute a Last Will and Testament. If there is an estate to administer, an interested party can petition the court to be appointed as Administrator for the estate. This is done by filing an Administration Petition with the Surrogate’s Court. After the appointment of Administrator is made, the estate’s affairs can be wound up.

Definition - Probate

Christopher L. Miller — Fri, 04 Jul 2008 02:33:58 +0000

Probate is a judicial proceeding by which a testamentary document is proven to be a Last Will and Testament. It is begun in New York by filing a Probate Petition with the Surrogate’s Court. Once it is established to the satisfaction of the Surrogate that there is no issue of improper execution or attestation, testamentary capacity, fraud, or undue influence, the document will be “admitted to probate” and given effect as a Last Will and Testament. A Decree is signed and entered so stating, and an Executor is appointed to administer the estate.

Definition - By Representation

Christopher L. Miller — Sun, 22 Jun 2008 21:58:47 +0000

To follow up the definition of per stirpes, our next term is by representation. Again, this term is used to tell us attorneys how the children of a deceased named beneficiary should take their inheritance. Again, a numerical example is the best explanation.

Back to our previous hypothetical: (more…)

Leona Helmsley Estate Settlement

Christopher L. Miller — Mon, 16 Jun 2008 22:09:09 +0000

The Associated Press reports that New York County Surrogate Renee Roth accepted a settlement in the contested Estate of Leona Helmsley. The Last Will had been contested on grounds that Ms. Helmsley was unfit to execute a Will. The Will left 12 million dollars in trust for Ms. Helmsley’s pet maltese dog, while leaving out two grandchildren “for reasons known to them.” The settlement reduces the trust for the dog to 2 million, gives the rest to charity, and provides the two grandchildren with 6 million dollars each.

Interestingly, New York is one of a few states that has (more…)

Definition - Per Stirpes

Christopher L. Miller — Tue, 20 May 2008 21:29:04 +0000

If you have a Last Will prepared, you will probably wonder what per stirpes means. The term is from Latin and means literally per branch. What it means is that each branch of a Decedent’s family takes an equal share, regardless of the number of family members in each branch. This term simply tells us attorneys how to divide up an interest in your estate in case the person you named as a beneficiary died before you, leaving surviving children.

The term is best defined by an example. Suppose that (more…)