New York Lawyers Practical Skills Series Includes Forms on CD Probate and Administration of Decedents Estates Jessica R. Amelar, Esq. Arlene Harris, Esq. 2016 2017 NEW YORK STATE BAR ASSOCIATION Sponsored by the General Practice Section
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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... 8 1. Petition (Form P-1)... 8 a. Persons Who May Petition for Probate... 8 b. Analysis of Petition... 8 2. Citation (Form P-5)... 10 a. Persons to Be Served... 10 b. Service of the Citation... 11 c. Return Day of Citation... 13 3. Waiver and Consent (Form P-4)... 13 4. Notice of Probate and Affidavit of Mailing (Form P-6)... 13 5. Proof of Attesting Witnesses and Examination of the Person Who Prepared the Will... 13 6. Decree and Letters Testamentary... 14 7. Preliminary Letters Testamentary (Form P-2)... 14 VII. Voluntary Administration... 15 VIII. Administration Proceedings... 15 A. Persons to Whom Letters of Administration May Issue... 15 B. Forms to Be Filed in an Administration Proceeding... 16 C. Analysis of Completed Administration Forms... 16 1. Petition... 16 a. Persons Who May Petition for Letters of Administration... 16 b. How to Complete the Petition... 16 2. Renunciation of Letters of Administration and Waiver of Process (Form A-8)... 18 3. Citation (Form A-2)... 18 4. Notice of Application for Letters of Administration (Form A-3)... 18 5. Requirement of a Bond... 18 6. Decree Appointing Administrator (Form A-6)... 19 IX. Record Keeping... 19 X. Marshaling Assets of Decedent s Estate... 19 A. Overview... 19 B. Tax Forms... 20 1. Taxpayer Identification Number... 20 iii
2. Notice Concerning Fiduciary Relationship IRS Form 56... 20 3. Federal and State Releases of Estate Tax Lien... 20 XI. Preparation of Inventory... 21 XII. Tax Returns... 21 A. Overview... 21 B. Federal Estate Tax... 21 C. New York State Estate Tax... 22 XIII. Payment of Debts and Expenses... 22 XIV. Making Distributions of Estate Assets... 23 A. Timing of Payment of Distributions... 23 B. Exemption for Benefit of Family... 23 C. Abatement, Tax Apportionment and Distributions in Kind... 24 D. Distributions to Infants and Other Persons Under a Disability... 24 E. Legacy Receipts... 24 XV. Commissions and Attorney Fees... 25 XVI. Fiduciary s Account of Acts and Proceedings... 25 Suggested References... 27 Appendix: Uniform Rules for the Surrogate s Court... 29 Probate and Administration Forms Index... 61 Table of Authorities... 187 About the Authors... 193 iv
PROBATE AND ADMINISTRATION FORMS
INDEX OF FORMS* Certificate of Death... 63 Attorney s Certification in Probate Proceeding... 64 Petition for Probate (Form P-1)... 65 Application for Preliminary Letters Testamentary (Form P-2)... 75 Affidavit of Attesting Witness (Form P-3)... 83 Waiver of Process; Consent to Probate (Form P-4)... 85 Probate Citation (Form P-5)... 87 Notice of Probate (Form P-6)... 89 Affidavit of Comparison (Form P-13)... 93 Application and Order to Dispense with Testimony of Attesting Witness (Form P-8)... 95 Affidavit Proving Handwriting (Form P-9)... 97 Renunciation of Nominated Executor and/or Trustee (Form P-10)... 99 Renunciation of Letters of Administration c.t.a. and Waiver of Process (Form P-11)... 101 Affidavit of No Debt (Form P-12)... 103 Affidavit of Service of Citation (Form P-7)... 105 Decree Granting Probate... 107 Petition for Letters of Administration (Form A-1)... 109 Administration Citation (Form A-2)... 121 Notice of Application for Letters of Administration (Form A-3)... 123 Affidavit of Mailing Notice of Application for Letters of Administration (Form A-4)... 127 Notice to Consul General (Form A-5)... 129 Decree Appointing Administrator (Form A-6)... 131 Affidavit of Regularity (Form A-7)... 133 Waiver of Citation, Renunciation and Consent to Appointment of Administrator (Individual) (Form A-8) New Acknowledgment... 137 Waiver of Citation and Consent to Appointment of Administrator (Corporation) (Form A-9) New Acknowledgment... 139 Affidavit of Service of Citation (Form A-10)... 141 * 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 (1-800-829-1040) <www.irs.gov> and the New York State Department of Taxation and Finance (1-518-457-5387) <www.tax.ny.gov>.
Application for Employer Identification Number (IRS Form SS-4) and Instructions... 143 Notice Concerning Fiduciary Relationship (IRS Form 56) and Instructions... 153 Application for Estate Tax Release(s) of Estate Tax Lien (Form ET-30)... 159 Application for Certificate Discharging Property Subject to Federal Estate Tax Lien (IRS Form 4422)... 161 New York State Estate Tax Domicile Affidavit (Form ET-141)... 163 Release of Lien of Estate Tax (Real Property) (Form ET-117)... 165 New York State Estate Tax Return (For an Estate of an Individual Who Died During the Calendar Year 2013) (Form ET-706)... 167 Instructions for Form ET-706 New York State Estate Tax Return (Form ET-706-I)... 173 Inventory of Assets (Rule 207.20(a))... 179 New York State Estate Tax Certification (Form ET-85)... 181 Instructions for Form ET-85 New York State Estate Tax Certification (Form ET-85-I)... 183 Firearms Inventory (SCPA 2509)... 185
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.