Probate Attorney Serving Oakland Gardens, NY

Oakland Gardens is a family-oriented residential neighborhood in New York City. Located in the southern part of Bayside in Queens, Oakland Gardens is considered by residents to be a tranquil and peaceful atmosphere for working families. The schools of Oakland Gardens are a main attraction for local families as well—with highly-rated public schools within walking distance for residents.

Oakland Gardens, like many parts of Queens, is diverse and rich in culture with walkable, well-lit streets and plenty of restaurants. Oakland Gardens is also known as a great place for dog lovers with plenty of trails at Alley Pond Park and Cunningham Park. Overall, Oakland Gardens is a beautiful and welcoming community. It is known by residents to be a lively, safe, and respectful atmosphere filled with green parks and quiet streets.

What is the difference between probate and estate administration?

Probate and estate administration are processes by which an estate is passed on to beneficiaries and heirs (or “distributees”). Whether or not an estate plan is in place—and whether or not a valid will was executed—will determine which of these processes governs the assets that are distributed after a person passes away.

In New York, “probate” is the process by which a person’s last will and testament is proved to be valid in the Surrogate’s Court. This includes proving the validity of a written will, marshalling and taking inventory of all assets, and distributing the assets of an estate. When a person creates a written will, an “Executor” is designated to manage the estate and carry out the wishes expressed in the will. Otherwise, if a person passes away without a will, the Surrogate’s Court will appoint an “Administrator” to carry out the administration of the estate. Both executors and estate administrators are considered fiduciary appointees by the Surrogate’s Court.

Perhaps the most important consideration for any fiduciary appointment is the authority granted by the court. In particular, the executor or administrator will be limited to the powers granted by the Surrogate’s Court and permitted under New York State law. A will could also expand or restrict powers granted to a fiduciary. The powers include, but are not limited to, the following fiduciary actions on behalf of the estate: collecting the assets of the estate, paying debts, taxes, or other estate expenses; preserving and investing assets; selling assets of the estate; distributing assets of the estate to the rightful third parties; engaging in any required litigation; employing professionals such as attorneys or accountants to assist in the administration of the estate.

Are real estate properties sold or is title transferred to Beneficiaries?

The estate of a loved one may contain a variety of assets, including real property. Assets of the estate may include funds in bank accounts, bonds, stocks, jewelry, and real estate, as well as other types of assets. It is not uncommon for an estate’s real estate asset to be the most valuable property, which also means real estate may be used to settle estate debts and pay estate expenses.

The manner in which real estate properties are distributed depends on the Will, whether the property is partially owned or solely owned by the deceased, any outstanding debts to creditors on the property or other estate assets, and the cooperation and wishes of beneficiaries. If there are any payments to be made on the estate, then this would typically occur prior to the distribution of any assets to beneficiaries.

In some cases, creditors may need to be paid from the proceeds of selling real estate. Alternately, if an estate does not have sufficient liquid assets to cover estate taxes and/or estate expenses, estate assets may have to be sold to provide sufficient money to cover those costs. In such a case, beneficiaries may receive any remaining proceeds after payment to creditors, estate taxes and other costs, rather than actual title to the property. Of course, the process and outcome will depend on the particular circumstances of each family.

Can advance payments be made to Beneficiaries of a Will?

While the actual process of estate administration will vary from family to family, it could take several months or even years before beneficiaries and distributees receive payments (or other interests) from an estate. For some families, such a delay may significantly impact beneficiaries who were financially supported by their loved one.

As such, there are a few ways that a beneficiary may receive advance payments before the actual distribution of estate interests. If the will is not contested and the beneficiaries are cooperative, an executor or administrator may voluntarily advance distribution to beneficiaries who require immediate financial assistance. This is not always advisable because if there is a shortfall at the end of an administration to pay all the beneficiaries, estate debts, costs or taxes, it would be the executor or administrator’s personal responsibility to cover the shortfall. If cooperation is lacking between the beneficiaries, it is best to wait until the administration is completed and each beneficiary has signed a receipt and release acknowledging their rightful share and releasing the executor or administrator from any liability with regard to the estate.

If there is a concern that a beneficiary would need access to funds immediately, there are ways to plan in advance, before death to avoid having to wait for the Surrogate’s Court process to run its course. An estate planning attorney can advise you on how to plan best for your particular situation.

Contact the Attorneys of Esther Schwartz Zelmanovitz, PLLC

Probate and estate administration matters can be complicated and lengthy. As the laws of each state vary, it is best to consult a local attorney to determine how best to proceed in your particular situation.

Whether seeking representation as an executor or administrator, the lawyers of Esther Schwartz Zelmanovitz, PLLC can guide you through the process as a fiduciary of the estate. Our law firm assists residents of New York State—including Oakland Gardens, Queens, and its surrounding areas.  Our experienced attorneys would be honored to assist your family in the areas of estate planning, probate and estate administration, and elder law.