Probate and Administration of Decedents Estates

Transcription

1 New York Lawyers Practical Skills Series Includes Forms on CD Probate and Administration of Decedents Estates Jessica R. Amelar, Esq. Arlene Harris, Esq NEW YORK STATE BAR ASSOCIATION Sponsored by the General Practice Section

2 New York State Bar Association publications are intended to provide current and accurate information to help attorneys maintain their professional competence. Publications are distributed with the understanding that NYSBA does not render any legal, accounting or other professional service. Attorneys using publications or orally conveyed information in dealing with a specific client s or their own legal matters should also research original sources of authority. We consider the publication of any NYSBA practice book as the beginning of a dialogue with our readers. Periodic updates to this book will give us the opportunity to incorporate your suggestions regarding additions or corrections. Please send your comments to: Publications Director, New York State Bar Association, One Elk Street, Albany, NY Copyright 2016 New York State Bar Association All rights reserved ISBN: Product Number:

3 CONTENTS I. Introduction... 1 II. Overview... 1 III. Applicable Statutes... 1 IV. Jurisdiction of the Surrogate s Court... 2 V. Funeral Arrangements and Other Pre-Probate or Pre-Administration Activity... 3 VI. Probate Proceedings... 5 A. Definitions... 5 B. Locating the Will... 5 C. Preliminary Review of Will... 6 D. Probate Overview... 7 E. Forms to Be Filed in a Probate Proceeding... 8 F. How to Complete Probate Forms Petition (Form P-1)... 8 a. Persons Who May Petition for Probate... 8 b. Analysis of Petition Citation (Form P-5) a. Persons to Be Served b. Service of the Citation c. Return Day of Citation Waiver and Consent (Form P-4) Notice of Probate and Affidavit of Mailing (Form P-6) Proof of Attesting Witnesses and Examination of the Person Who Prepared the Will Decree and Letters Testamentary Preliminary Letters Testamentary (Form P-2) VII. Voluntary Administration VIII. Administration Proceedings A. Persons to Whom Letters of Administration May Issue B. Forms to Be Filed in an Administration Proceeding C. Analysis of Completed Administration Forms Petition a. Persons Who May Petition for Letters of Administration b. How to Complete the Petition Renunciation of Letters of Administration and Waiver of Process (Form A-8) Citation (Form A-2) Notice of Application for Letters of Administration (Form A-3) Requirement of a Bond Decree Appointing Administrator (Form A-6) IX. Record Keeping X. Marshaling Assets of Decedent s Estate A. Overview B. Tax Forms Taxpayer Identification Number iii

4 2. Notice Concerning Fiduciary Relationship IRS Form Federal and State Releases of Estate Tax Lien XI. Preparation of Inventory XII. Tax Returns A. Overview B. Federal Estate Tax C. New York State Estate Tax XIII. Payment of Debts and Expenses XIV. Making Distributions of Estate Assets A. Timing of Payment of Distributions B. Exemption for Benefit of Family C. Abatement, Tax Apportionment and Distributions in Kind D. Distributions to Infants and Other Persons Under a Disability E. Legacy Receipts XV. Commissions and Attorney Fees XVI. Fiduciary s Account of Acts and Proceedings Suggested References Appendix: Uniform Rules for the Surrogate s Court Probate and Administration Forms Index Table of Authorities About the Authors iv

5 PROBATE AND ADMINISTRATION FORMS

6 INDEX OF FORMS* Certificate of Death Attorney s Certification in Probate Proceeding Petition for Probate (Form P-1) Application for Preliminary Letters Testamentary (Form P-2) Affidavit of Attesting Witness (Form P-3) Waiver of Process; Consent to Probate (Form P-4) Probate Citation (Form P-5) Notice of Probate (Form P-6) Affidavit of Comparison (Form P-13) Application and Order to Dispense with Testimony of Attesting Witness (Form P-8) Affidavit Proving Handwriting (Form P-9) Renunciation of Nominated Executor and/or Trustee (Form P-10) Renunciation of Letters of Administration c.t.a. and Waiver of Process (Form P-11) Affidavit of No Debt (Form P-12) Affidavit of Service of Citation (Form P-7) Decree Granting Probate Petition for Letters of Administration (Form A-1) Administration Citation (Form A-2) Notice of Application for Letters of Administration (Form A-3) Affidavit of Mailing Notice of Application for Letters of Administration (Form A-4) Notice to Consul General (Form A-5) Decree Appointing Administrator (Form A-6) Affidavit of Regularity (Form A-7) Waiver of Citation, Renunciation and Consent to Appointment of Administrator (Individual) (Form A-8) New Acknowledgment Waiver of Citation and Consent to Appointment of Administrator (Corporation) (Form A-9) New Acknowledgment Affidavit of Service of Citation (Form A-10) * Some of the forms contained in this monograph are omitted from the forms CD accompanying this publication. These forms are obtainable from the following government agencies: the Internal Revenue Service ( ) < and the New York State Department of Taxation and Finance ( ) <

7 Application for Employer Identification Number (IRS Form SS-4) and Instructions Notice Concerning Fiduciary Relationship (IRS Form 56) and Instructions Application for Estate Tax Release(s) of Estate Tax Lien (Form ET-30) Application for Certificate Discharging Property Subject to Federal Estate Tax Lien (IRS Form 4422) New York State Estate Tax Domicile Affidavit (Form ET-141) Release of Lien of Estate Tax (Real Property) (Form ET-117) New York State Estate Tax Return (For an Estate of an Individual Who Died During the Calendar Year 2013) (Form ET-706) Instructions for Form ET-706 New York State Estate Tax Return (Form ET-706-I) Inventory of Assets (Rule (a)) New York State Estate Tax Certification (Form ET-85) Instructions for Form ET-85 New York State Estate Tax Certification (Form ET-85-I) Firearms Inventory (SCPA 2509)

8 ABOUT THE AUTHORS 193 JESSICA R. AMELAR, ESQ. Jessica R. Amelar is a principal court attorney in the New York County Surrogate s Court. A member of the Trusts and Estates Law Section of the New York State Bar Association, she has chaired its Continuing Legal Education Committee and served on the Association s Committee on Continuing Legal Education. Ms. Amelar spoke at the 2015 Annual Meeting of the New York State Bar Association, Trusts and Estates Law Section. ARLENE HARRIS, ESQ. Ms. Harris is Special Counsel and Co-Chair of the Trusts and Estates Department of the New York City firm of Kaye Scholer LLP. Previously, she was a member of Shea & Gould, the chief law assistant for the New York County Surrogate s Court and served as Assistant Attorney General, New York State Department of Law. Ms. Harris is the former Chair of the OCA Advisory Committee on the Surrogate s Courts. She is a Fellow of The American College of Trust and Estate Counsel, where she is the former Chair of its Subcommittee on Construction and Instruction Law. She is a former member of the Surrogate s Court Committee of the Association of the Bar of the City of New York. An active member of the New York State Bar Association, Ms. Harris is a former Chair of the Executive Committee of the Trusts and Estates Law Section. She is a former First District Representative and a former Chairperson of the Legislation and Estate and Trust Administration Committees. In addition to being a former Adjunct Professor of Law at St. John s University School of Law, she is a frequent lecturer at continuing legal education programs and panels. Ms. Harris is the author of articles on estates and estate planning. She is listed in The Best Lawyers in America, in Chambers USA, 2015 America s Best Lawyers and in 2014 Super Lawyers.