Probate 102 – Marshalling of Assets and Payment of Liabilities

Once the courts grant the Executor letters testamentary, it is time to marshal the assets and pay the liabilities of the estate. An experienced estate attorney can provide valuable advice and help with this process. Marshalling the assets involve first locating the assets of the decedent. The assets that are to be marshaled are any accounts and property that did not have a beneficiary attached to it. The following are other steps the Executor must account for:

  • Get EIN number - This number will be associated with the estate account for tax purposes.
  • Set up Estate Account - The Executor will need to create an Estate Account. The account will be titled the Estate of the decedent.
  • Transfer Property to Estate Account – Once the estate account is set up, the Executor will transfer any property that was in decedents name alone (no beneficiary designation listed on the account) to the estate account.
  • Appraisals of Property – An Executor may need to have appraisals done for businesses, real property, artwork, or anything that may have value.
  • Pay liabilities and reimburse parties for expenses expended – The Executor must make sure that claims are legitimate
  • Income Tax – Hire an accountant to file an income tax return for any years that have not been paid.
  • Estate Tax – Estate Taxes may need to be filed for New York State and Federally. Estate taxes are due 9 months from decedent’s date of death.
  • Wait for Creditors – Creditors have 7 months from the issuance of letters testamentary to come forward with any claims they have against the estate.
  • Keep a Detailed Accounting - Records of all the assets that have been marshaled and expended on behalf of the estate must be accounted for.

Being an Executor is no easy task. It can be very difficult to find where a decedent had their assets. Also, deciding whether to sell an asset or transfer at value is another difficult decision an Executor may need to make. The most important step of being an Executor is keeping detailed records. Every penny that was brought into the Estate should be accounted for.

For further legal advice and to talk with an experienced probate attorney, please feel free to give us a call at (718) 875-2191 or request a consultation.

Probate 101 – Appointment of the Executor

If you are named Executor in a Will, you may be asking yourself what are the next steps? Hiring a knowledgeable and experienced probate/estate attorney can help you with all the necessary steps in probating the Will. The first phase of probate is to get appointed as Executor by the Surrogates Court.

The following documents need to be submitted to the Surrogates Court to allow you to become Executor.

  • Original Will – The original Will needs to be submitted to the court.
  • Death Certificate – An original death certificate needs to be submitted to the court as well.
  • Petition – This is the document that informs the court that you were nominated as Executor, and that you are moving to have the Last Will and Testament probated. You are petitioning the court for Letters Testamentary which will give you authority to gather the assets of the deceased and act as Executor.
  • Waivers – Waivers need to be sent to the interested parties that would receive the estate if there were no Will (called intestacy). The waiver specifies that the party consents to the Will being admitted to probate and that you will be appointed as Executor. The waiver needs to be signed and notarized. If the waiver is not received a citation will need to be issued.
  • Citation – A Citation is served on interested parties that did not return the waiver. The citation is a date issued by the court which gives the interested party the right to object to the Will being probated. It is a matter of speak now or forever hold you peace. If the interested parties do not come forward they lose their right to object.
  • Affidavit of Due Diligence – If the location of an interested party is unknown and cannot be located after a diligent search, an affidavit to the court listing the methods attempted to find the interested party is needed.
  • Publication – If we are unable to find the addresses of an interested party after a diligent search, it is necessary to publish in a newspaper for four weeks that the Will is being offered to probate.
  • Notice – This document is sent to people mentioned in the Will who are not interested parties and would not receive anything through intestacy if the Will were not to be probated. It notifies them that they have been mentioned in the decedent’s Will.
  • Affidavit of Sole Heirship/Affidavit of Heirship – Depending on the situation, the Court will ask for an affidavit explaining the genealogy of the family.
  • Affidavit of Comparison – The court requires us to file a copy of the original Will that is examined by two witnesses attesting that the copy of the Will is the same as the original.
  • Submitting all documents to the court – Once all documents are submitted to the court, the court reviews them to ensure that everything has been done properly.

Letters Testamentary will be issued by the Court- Letters testamentary will allow the Executor the legal authority to perform the duties of the Executor such as gathering the assets of the deceased, paying liabilities, and distributing the estate according to the Will.

For more information or to schedule a consultation with Brooklyn’s Elder Lawyers, please feel free to give us a call at (718) 875-2191 or fill out a contact form.