Upon a person’s death, a proceeding may be brought in the Surrogate’s Court of the county in which the person formerly resided. The proceeding will seek to collect and administer assets of the deceased person, and distribute them to his/her heirs.
There are two basic types of proceedings: Probate and Administration.
Probate: where the deceased executed a “Last Will and Testament,” a proceeding will be filed to “probate” [or “prove”] the Will. The deceased, known as the “testator” will have designated an “executor” [someone selected to carry out the deceased’s wishes], who may or may not receive a commission for such services. The deceased will also have designated beneficiaries to receive portions of his/her estate. The deceased may indicate specific bequests of property (such as “to my brother, I leave my guitar”) or general bequests (such as “to my three siblings, I leave them each one-third of my net estate”).
Administration: where the deceased did not execute a Will, the person is referred to having died “intestate.” Contrary to popular belief, the assets of that person’s estate do not automatically go to the State. Rather, there is a section of law which specifies the manner in which an intestate’s assets are distributed. Depending on who the survivors of the intestate are (such as a spouse, child, parent, or cousin), the law will tell the “administrator” to whom the net assets of the estate must be paid. The “administrator” serves a similar duty to the deceased’s estate as the “executor” mentioned above, and may be appointed by the Surrogate of the county upon proper application.
Collection of assets
After appointment, the executor/administrator will have the duty to locate and collect the various assets of the deceased. An account may be opened in which the assets will be deposited; non-liquid assets, such as cars, houses, stocks, or furniture may be sold at auction or otherwise converted to money. Actions may be brought on behalf of the deceased to collect moneys due to the estate or for wrongful death/personal injury actions.
Tax returns
After all of the assets have been collected, the executor/administrator will determine whether federal and/or state estate tax returns must be filed. Various banks or institutions may require “tax waivers” or “releases of tax lien” from the State in order to release funds to the executor/administrator.
Accounting
The final duty of the fiduciary is to file with the court an “accounting” of what that person did during his term as executor/administrator.
Professional fees
The fiduciary will retain and pay professionals in connection with the estate proceeding, including attorneys, accountants, brokers, auctioneers, and appraisers.
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copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
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