Review the statute to see what property is automatically set off to the surviving spouse.
EPTL A? 5-3.1 Exempt Property
Exempt Property Set Off to Surviving Spouse and to underage children free of claims of creditors other than specific debts such as a car loan. This property is given to the surviving spouse even if there is a will that says something else. These figures are the maximum for each category.
Up to the following amounts:
Furniture and furnishings -$10,000.00; Books and software- 1,000.00; A Vehicle- $15,000.00; Domestic Animals & feed, tractor, farm machinery, lawn tractor - $15,000.00; Money or other personal property - $15,000.00 .
This could total up to $56,000.00 if the property is there.
So if the house is jointly owned, and the contents are under these categories, there may be no need to go to court to handle the estate, since the statute sets these things off to the surviving spouse automatically.
If there is no will, what happens?
In addition to the exempt property in Step One, the surviving spouse is entitled to a share that is determined by whether or not the deceased had any children. If not, the spouse takes all the solely owned property of the decedent. If decedent had children or grand children, New York law says the spouse takes the first $50,000.00 and shares the balance of solely owned property with the children. Surviving spouse takes 50% of the balance and the children split the remaining 50% equally.
If there is a will, what happens?
The will only affects the solely owned property of the decedent. If the will attempts to limit the amount given to the spouse, there is a widow's election statute in the state of New York that allows the widow to demand his/her elective share. This has to be done within nine months of the death of the spouse. The election requires the court to examine all the assets of the decedent including joint property that he held with the spouse and with others. Those assets are totaled up and the widow gets 33% of them. Frequently, the surviving spouse in a second marriage has to demand his/her share under the statute in face of a will that treats his/her share in trust for the first family's children.
If there is a will, what do I have to do to carry its instructions out?
If you have the original will, and a certified death certificate you can go to the county surrogate court and ask for help. In our county, the staff is more than willing to help you though the paper work. You have to fill out a petition that identifies the immediate family members, lists the value of the property passing under the will, and informs the court if any of the family members are under age or incapacitated mentally. With the petition, you can give the court waivers and consents from the family members that accept the will and accept you as the executor/trix of the estate. Without those consents, the court will give you a show cause order that you will have to serve on the non-consenting family members demanding that they appear in court on a set date to file objections. Their failure to show will mean they waive their objections and the court will accept the will and appoint you to stand in the shoes of the decedent to carry out his wishes.
When can I pay out the gifts under the will?
By law, you are required to give creditors seven months from your date of appointment so as to allow them to file their claims. All claims must be paid or settled first before you can make gifts to beneficiaries under the will. Specific gifts then can be paid out. The residuary estate can not be given out until there is an accounting and the residuary beneficiaries all sign off on the accounting releasing the executor from any further liability. If you are the only beneficiary, then the process becomes much simpler. Prior to making these final gifts, you need to get court approved forms to be signed before a notary public. These forms detail what went on with the estate and contain the beneficiaries release of you and a receipt for the gifts due them. Those papers will finalize the estate.
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