Powered by Avvo.com

What steps to take after my father has passed away.: My father passed away 2 weeks ago. He did not have much in the way of assets, he has a small savings account with 1200 dollars and a retirement annuity with my mother named as beneficiary. I was reading that a small estate affidavit should be filed with surrogates court listing the couple things that he had. Now do we list the annuity as an asset, even though my mother is named beneficiary upon death? Also, do we need to file for the savings account or can my mother claim it at the bank as surviving spouse? The wording is a bit tricky when I was reading NYS family rights part 3, I get that my mother is soul owner to his assets, just not sure if an affidavit really needs to be filed for the 2 items.

Asked about 2 months ago in Probate

George’s answer: A surviving spouse in New York State is entitled to certain personal property which doesn't become part of your late father's probate estate. This "exempt" property includes cash up t to $25,000.00. The bank may release the funds to your mother based on an affidavit signed by your mother claiming it as exempt property under NY Estates Powers and Trusts Law section 5-3.1. If your mother is the beneficiary of the annuity it is also not part of your father's probate estate and your mother should be able to collect it by providing a death certificate.

A small estate proceeding, also called a Voluntary Administration proceeding is available for Estates with assets less than $30,000.00. The procedure is designed for a lay person to use without the aid of an attorney and there is a DIY website that will fill out the affidavit for your use. See https://www.nycourts.gov/courthelp/diy/smallEst... The $30,000 limit only applies to probate assets so the value of the annuity is not included.

Answered about 2 months ago.


As executor, what happens if I do not follow my husband's will the way it is written?: My husband died and his grown children have all of his possessions. I was told by other family members that he had made a new will, so I didn't argue about it. I have come to find out that there was no new will and the one I have is the only one. So now that my step children have his possessions, and were supposed to get money, if I sign over the vehicles to them instead, is that legal? That is what they want because there is no money.

Asked 6 months ago in Probate

George’s answer: In New York State a surviving spouse is entitled to certain exempt property, including, but not limited to a vehicle worth up to $25,000.00 and cash up to $25,000.00 (NY EPT Section 5-3.1). Such exempt property is not part of the decedent's estate and is not subject to to the directives set forth in a will. In addition, a surviving spouse is entitled to an elective share, generally equal to one-third of the deceased spouse's estate which in some cases includes no-probate assets.

As far as probating your husband's will, if there are no assets just in his name other than exempt property, there is no need to bring a probate proceeding. If there are assets just in his name worth less than $30,000.00 in value, a small estate proceeding (also called voluntary administration) can be brought.

Answered 6 months ago.


Power of Attorney cleaning out the 401K after Death NYC: Hi,

My sister in law, who had a power of attorney, transferred all the assets from the 401K account where I was the beneficiary after my husband's death. I received a letter from the company (dated November 10, my husband passed on 7 of November) asking me to submit the documentation regarding his death and the beneficiary form since I was the beneficiary. Now they tell me she was within her rights as a PO to move the funds out. They refused to give me any details as to "protect" their new client My question is, even if she made the request to have the funds moved before my husbands death could the funds have been legally moved after I called and let them know that the man was deceased? It appears so judging from the letter I received from them dated November 10 where they acknowledge his departure and ask me to submit the documents. Looking at their letter, the funds were still there three days later. Thanks

Asked 6 months ago in Probate

George’s answer: Your sister-in-law's authority to act as your brother's agent pursuant to the power of attorney ceased upon your brother's death. Prior to your brother's death, your sister-in-law could act on your brother's behalf provided her actions were authorized by the terms of the power of attorney. If a change of beneficiary or withdrawal from the 401K account was valid provided your brother initiated the change prior to his death (even if said action was completed by the 401K fiduciary after your brother's death), then the same result applies if said action was initiated by your sister-in-law as his agent.

You should consult an attorney. He/she will need to examine the power of attorney to see if it gave your sister-in-law the power to take such action and whether it was done in a timely manner.

Answered 6 months ago.