Probate, Administration, and Estates
What is Probate?
When a person dies with a Last Will and Testament, the will is not binding until the court issues an order declaring valid and that its instructions be valid. Probate is the term for the court proceeding to obtain this decree. Following the issuance of the letters testamentary, the estate is then disposed of as provided in the will.
What is Administration?
When a person dies without a Last Will and Testament, the disposition of their estate goes to the default will everyone has. The process is similar to probate, but instead of the decedent choosing who manages the estate, New York State does instead. Likewise, instead of the decedent choosing how his or her estate is distributed, the assets of the estate are distributed in accordance with the New York default will.
What is an Estate?
When someone dies, any property or assets they owned will fall into one of two general categories. First are those assets which are disposed of automatically by law, such as jointly owned property or property with a named beneficiary.
The second category consists of those assets which are owned only by the deceased and pass into his or her estate. Disposing of these assets are determined by how the estate is divided.
Does Probate and Estates Affect a Divorce?
The loss of inheritance rights has always played a factor in the financial aspects of a divorce. Prior to the equitable distribution law of 1980, only wives could be awarded alimony and the wife's loss of inheritance rights played a factor in determining her alimony award. When DRL 236 B became effective and authorized equitable distribution, one of the factors in disposing of marital property was the loss of inheritance rights, and it remains a factor to this day.
This factor role is largely diminished, as equitable distribution provides for a property award as part of the divorce. The loss of income from a spouse's pension after retirement has been offset by the Court of Appeals case of Majauskas v Majauskas and today loss of inheritance rights rarely plays a significant factor in marital property awards as a general rule.
Like with any rule, exceptions may apply.
Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation
If you have have additional questions, contact our office to learn about your legal options for protecting your rights in any matter involving probate, administration or estates. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.
- Divorce and Annulments
- Custody and Parenting Time
- Child Support
- Spousal Maintenance
- Equitable Distribution
- Exclusive Occupancy
- Counsel Fee Awards
- Expert Fee Awards
- Pendente Lite Motions
- High Net Worth Divorces
- Matrimonial Agreements
- Matrimonial Appeals
- Modification of Child Support
- Modification of Spousal Maintenance
- Complex Challenges