Frequently Asked Questions
- What is probate?
- How is a will probated?
- Are there different types of wills?
- Who should make a will?
- What about health care provisions and powers of attorney?
- What are estate (death) taxes?
- Can a prenuptial agreement be modified after marriage?
- How are Custody and Visitation issues decided?
- When can a child support order be changed or modified?
- What happens to a father who refuses to pay court ordered child support?
- How is the amount of child support determined?
- Can I object to the terms my spouse has requested in our divorce?
The following information includes frequently asked probate questions. The answers stated are general in nature and are not intended to apply to every situation. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. For a personal consultation regarding your specific case, please contact New York probate Attorney Joseph Ledwidge at 718 276 6656.
What is probate?
Probate is a process whereby the Court supervises the transfer of assets from the deceased person to his or her heirs and requires the filing of particularized and complicated legal forms. New York probate Attorney Joseph Ledwidge has particular expertise and experience in the area of probate and estate administration. He can promptly respond to your questions and inquiries and assist you with the probate and estate administration process in a professional, courteous and timely manner. If an Estate Tax Return (Form M-706) is required, Attorney Joseph Ledwidge has the expertise and ability to promptly take care of this important tax requirement and is able to assist with the following types of probate matters:
- Petition for probate of estate
- Will and trust contests
- Estate and trust administrations
How is a will probated?
The following is a simplified outline of the general probate process:
The original will is deposited with the Court.
- The Executor named in the will or Administrator is appointed. Executors and Administrators are commonly referred to as Personal Representatives.
- The Personal Representative files a Petition for Probate of the Estate.
- For approximately four months from the date of the Petition for Probate, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
- During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc. during this time.
- When the four-month claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.
- If the Court approves the plan, the Personal Representative then divides the assets as instructed in the will, or as required by statute if no Will exists.
- The minimum amount of time that the probate process can be completed is approximately six months, but it normally takes longer. Reasons for delays can include will contests, property cannot be sold, claimants not being notified in the original four-month claim period, etc.
Are there different types of wills?
There are many types of wills:
- A Double Will is one in which two people join together; leaving their individually-owned property and estate(s) to the other. This type of Will is also called a Counter Will, Joint and Mutual Will, or Reciprocal Will.
- Holographic Wills are entirely handwritten, dated, and signed by the testator.
- A Living Will, Medical Directive or Health Care Directive is one that authorizes the continuance or cessation of life-sustaining medical treatments from an individual who is incapable of making that decision due to debilitating circumstances.
The Law Offices of Joseph A. Ledwidge, Esq. can help you or a loved one decide which type of will is most suitable.
Who should make a will?
Every adult person should consider making a will. Each year a large number of people die without wills, leaving major decisions in the hands of the state of New York. Wills are especially important for parents of children who are under eighteen, as arrangements for the children's financial support and/or appointed guardian can be determined. Without a will, any property distributed to minor children could be subject to an expensive court-appointed guardianship, which could greatly affect inheritance. And in some states, if you were married and childless, your parents could split your property with your spouse if not alternatively predetermined in a will.
What about health care provisions and powers of attorney?
New York extends the delegation of decision-making power to cover health care issues including the withholding or withdrawal of life support treatment by means of a Power of Attorney for health care. Through this Power of Attorney, you have the right to designate an agent who can make treatment decisions for you in instances where no communication is possible because of your medical condition.
In addition to health care considerations, it is also important to have a power of attorney available to handle various legal and financial matters in the event you become mentally incompetent. For example, a surviving spouse can be given a Power of Attorney to handle her incompetent spouse's salary checks, social security benefits and to make other legal and financial decisions.
What are estate (death) taxes?
Estate tax may apply to your taxable estate at your death. Your taxable estate is your gross estate less allowable deductions. Your gross estate includes the value of all property in which you had an interest at the time of death. Your gross estate also will include the following.
- Life insurance proceeds payable to your estate or, if you owned the policy, to your heirs
- The value of certain annuities payable to your estate or your heirs
- The value of certain property you transferred within 3 years before your death
- Trusts or other interests established by you or others in which you have certain powers
The allowable deductions used in determining your taxable estate include:
- Funeral expenses paid out of your estate
- Debts you owed at the time of death
- The marital deduction; generally, the value of the property that passes from your estate to your surviving spouse
The following information includes frequently asked family law questions. The answers stated are general in nature and are not intended to apply to every situation. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. For a personal consultation regarding your specific case, please contact New York family law Attorney Joseph Ledwidge today at 718-276-6656.
Can a prenuptial agreement be modified after marriage?
Yes. Any terms of a prenuptial agreement can legally be altered or modified in the future, if both parties so decide. Other terms of the prenuptial agreement not altered will remain intact, unless both parties revoke the entire agreement in writing. And some states will alter prenuptial agreements without party involvement. For example, prenuptial agreements can become void one and a half years after the parties to the contract become parents, unless the agreement is later renewed in writing by said parties.
As prenuptial agreements are becoming increasingly common, so are similar documents called post nuptials agreements. Post nuptials agreements are much like prenuptials, but are drafted and signed after a couple has been married. Post nuptials can be drawn up at any time during the course of a marriage, and can be altered in the same way as a prenuptial agreement.
How are Custody and Visitation issues decided?
No area of family law brings to the courtroom the tension, anxiety, hostility, volatility and raw emotion as child custody and visitation litigation. Rare is the divorce, dissolution or custody determination in which the parties have been able to set aside personal differences to reach the goal of what is best for the children involved. Most parents pay lip service to this ideal, but often cannot reach it in actuality. Most often a judge will take great pains to get parents themselves to come to a mutually acceptable custody agreement if that is possible. A decision made by a stranger is rarely completely acceptable to all if the attempt has not been made in earnest. The family court systems of the states usually have several layers of counseling, mediation and conciliation to attempt to bring warring parents together for the purpose of resolving the issue of what it is in the best interests of their children.
When can a child support order be changed or modified?
An order for child support can be changed or modified any time there is a material change in circumstances from the time that the existing child support was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent's financial situation such as an appreciable difference in the amount of income earned, loss of a job, a large inheritance or a change in the amount of time spent with the child. The material change in circumstance can be the result of a new situation for the child such as large medical expenses, a need for special education or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.
What happens to a father who refuses to pay court ordered child support?
Under the Child Support Enforcement Act of 1984, it is against the law for any father, presumed or assumed, to not pay court ordered child support to the custodial guardian, regardless of joint custody. Federal laws permit the interception of tax refunds to enforce child support orders, and other methods of enforcement include wage attachments, seizure of property, suspension of a business license and possible driver's license revocation. In the event that none of these attempts are entirely successful, the court of law that issued the child support order can hold the father in contempt and, in the absence of a reasonable explanation for the delinquency, impose a jail term.
How is the amount of child support determined?
Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other.
Can I object to the terms my spouse has requested in our divorce?
Yes, you (along with your attorney) can reject the terms of your spouse's offer. On receiving an objection to the establishment of a family law attorney's settlement, the court may at its own discretion determine whether the case involves complex or substantial issues of fact or law related to property rights, visitation, custody, or support. If the court finds that the case involves one or more of these complex or substantial issues, the court may implement a case management plan.