Delaying the Administration of an Estate or the Probate of a Last Will Has Many Unanticipated Consequences
By: Anthony J. Enea, Esq.
After the death of a loved one it is not unusual for the family to delay making decisions or taking any actions as to the decedents’ estate. The family members are often grieving and are unable to emotionally face the issues and work that must be done to handle the decedent’s affairs. They may also be concerned that their loved ones Last Will & Testament (LWT) may create family wounds and issues that they are unwilling to deal with.
A typical scenario is when the last surviving parent dies owning a house that is in their name alone and they either have executed a LWT and/or have passed without having executed a LWT.
If they have a LWT, then said LWT will need to be probated (accepted by the Surrogate’s Court of the County where the decedent resided). If the LWT is not accepted into Probate, the named Executor of the LWT has no legal authority to act and is unable to represent the decedent’s estate. Thus, they are unable to sell and/or distribute estate assets and pay any debts of the decedent, as they will not have access to any assets that were in the decedents name alone on the date of his death.
If the decedent’s loved ones/Executor(s) delays filing a Probate Petition the Court will require an “Affidavit of Delay” to be filed, explaining why the filing of the LWT for Probate was delayed. Additionally, and of even greater concern is if during the period that the LWT is not probated one of the beneficiary(ies) of the decedent’s estate passes away. If a beneficiary passes away after the Testator (person who made the LWT), then in that event the Executor(s) of the LWT must distribute said beneficiary(ies) share to the duly Court appointed Executor(s) and/or Administrator(s) of the decedent beneficiary(ies) estate. Quite a confusing process! Thus, this will require that the decedent beneficiary’s named Executor(s) Probate said decedent’s LWT or commence an Administration proceeding for them in order for the original probate proceeding to be completed. This will result in additional delays in finalizing the Testator’s estate along with additional expenditures (legal fees/filing fees) for both estates. Probate is a process that even if everything goes right, it takes approximately 9-12 months to complete.
If a decedent dies with assets in their name alone (without it being a joint account with rights of survivorship and/or having named beneficiaries) and without a LWT, said decedent is considered to have passed away “intestate.” The New York Estates, Powers and Trusts Law §4-1.1 dictates who will inherit the property of the decedent and in what percentages. These individuals are called “distributees.” In essence, the decedent has waived their ability to decide who will be the beneficiary(ies) of their estate and has let New York State law decide. For example, if a decedent dies with a spouse and children, then the law prescribes that $50,000.00 plus one-half (50%) shall be distributed to the spouse and the remaining one-half (50%) shall be distributed to the children of the decedent. It is especially important to ensure that the intestate laws align with your goals for distribution of your assets, as it often can lead to unanticipated and unwanted beneficiaries!
In my opinion, the longer one delays handling a loved one’s estate, the more unanticipated delays, additional work and expense can arise!
*Anthony J. Enea is the managing attorney of Enea, Scanlan and Sirignano, LLP of White Plains, and Somers New York. He focuses his practice on Wills, Trusts, Estates and Elder Law. Anthony is the Past Chair of the Elder Law and Special Needs Section of the New York State Bar Association (NYSBA) and is the past Chair of the 50+ Section of the NYSBA. He is a Past President and Founding member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA). Anthony is also a Past President of the Westchester County Bar Foundation and a Past President of the Westchester County Bar Association. He is fluent in Italian. He can be reached at 914-269-2367 or at [email protected]
