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New York Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning for New York on
Q: I am gifting my house to my son but can I use a warranty deed instead of a gift deed in New York State
Benjamin Z. Katz
Benjamin Z. Katz answered on Oct 10, 2019

Yes. A warranty deed means you, the transferor, are guaranteeing that you hold title to property. A quitclaim deed does not make that guarantee. Many gifts are made by quitclaim deed because they don’t have that warranty. Both are proper.

2 Answers | Asked in Estate Planning and Probate for New York on
Q: Are a will and a health Proxy made in the state of MA (3 years ago) are valid in the state of NY?
Michael David Siegel
Michael David Siegel answered on Oct 4, 2019

Yes. But as the forms are different, I would change the health care proxy so NY hospitals do not give problems. Also, as state law differs, if the estate is large enough, change may be warranted for NY law if that is where maker of will resides now.

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3 Answers | Asked in Banking, Criminal Law and Estate Planning for New York on
Q: Can a joint account holder deposit a check into their account if the check is made out to someone who passed away?

Mother received a large check from retirement account and she passed away before cashing it. Her boyfriend deposited the check into their joint account several days after her passing and then closed the account once the check cleared. He now has the money and is refusing to give it to the children.... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Sep 28, 2019

If he endorsed a check made payable to your deceased mother he committed fraud. You can call the police and/or DA to report it.

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2 Answers | Asked in Contracts, Estate Planning and Entertainment / Sports for New York on
Q: How would you know if there's a will left and not just thrown away?
Benjamin Z. Katz
Benjamin Z. Katz answered on Sep 25, 2019

If you believe there was a Will you would check where the decedent kept important papers, get in touch with their attorney or check with the local Surrogate’s Court to see if it was filed. If there is a safe deposit box many times people make the mistake of putting their Will there.... Read more »

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2 Answers | Asked in Estate Planning, Real Estate Law and Probate for New York on
Q: Is an administrator’s deed needed?

A family member passed away without a will leaving his wife and adult children. His name was on the deed for their home. His wife applied for and received letters of administration. Does she need to use an administrator’s deed to transfer the property to herself? If she does, would she only... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Sep 15, 2019

Yes. An Administrator’s Deed is the correct instrument for the transfer. Transfer taxes may not be required If there is no consideration for the transfer. However, if the property has a mortgage, relief of the mortgage obligation is consideration.

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2 Answers | Asked in Estate Planning and Real Estate Law for New York on
Q: The father of my son and ex-husband, bought a house i Garland, Texas, and he was paying a mortgage. He was living with h

His mom, new wife, His sister and nephew. His mom passed away in March, and he passed away a month ago, leaving no will. My son was His only child. Does my son has More rights over that property than His father's widow? Also my son's father was registered as the only owner of tittle of the... Read more »

Michael David Siegel
Michael David Siegel answered on Sep 8, 2019

Texas law governs this issue.

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2 Answers | Asked in Estate Planning, Real Estate Law and Elder Law for New York on
Q: My elderly father owns a property with my brother as joint tenants but he would like to leave my sister and I his share.

Could he sever the joint tenancy without my brother’s permission and change it to tenants in common? Also would he need a living trust to avoid probate and to designate my sister and I as his beneficiaries? Would that avoid due on sale clause since its a living trust? He and my brother are on... Read more »

Nina Whitehurst
Nina Whitehurst answered on Sep 5, 2019

I do not speak Cantonese but the answers to your other questions are yes, these things can be done. However, they are not do it yourself projects. You are well advised to hire an attorney to assist you with this

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2 Answers | Asked in Estate Planning for New York on
Q: What form do I need for legally-binding after-death instructions?

I want to leave legally-binding instructions for how my body should be treated and how my burial should go. The more I refresh my knowledge of wills the more it seems like perhaps I need something else. What do I need? It has to be legally-binding and not cost me thousands of dollars. Thanks

Benjamin Z. Katz
Benjamin Z. Katz answered on Sep 1, 2019

Generally those instructions are made part of your Will. If you don’t want to draft a new Will you can add a codicil to the Will. If you leave separate instructions or set up a burial fund it would not be legally binding unless referenced in you Will. Neither a new Will nor a codicil should cost... Read more »

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2 Answers | Asked in Estate Planning and Landlord - Tenant for New York on
Q: I'm a tenant in NY state. How long does it take to evict a tenant when owner is selling the house (and is family)?

My aunt has recently taken over my grandmother's finances. She has had many issues with my father and is not a nice person. She sent my family and I a letter stating once my grandmother passes, she will have control of the house and we will have 60 days to get out. We have been paying rent for 15... Read more »

Elaine Shay
Elaine Shay answered on Aug 24, 2019

Unless you are a rent-regulated tenant or have the protection of an unexpired lease, the owner of a property (or the owner's representative) has the ability to commence a holdover proceeding to recover possession of the rental unit after giving the tenant Notice of Termination. In the case of a... Read more »

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2 Answers | Asked in Estate Planning for New York on
Q: Hi , My grandmother passed away and left me stocks in her Will. The lawyer told us the money from the stocks that were

sold need to stay in escrow for a year ? Is that common ? Just trying to find out why it will take a year to get the funds

Thanks

Michael David Siegel
Michael David Siegel answered on Aug 20, 2019

No it is not common. You should get a distribution.

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1 Answer | Asked in Estate Planning for New York on
Q: I understand that it is a receipt and release acknowledgement but why do we have to wait for all siblings to sign?

Another Question from estate finally being settled after 7 years. Just wondering why we can’t receive our check if we agree to the amount? Why do we need to wait for siblings to sign?

Michael David Siegel
Michael David Siegel answered on Aug 13, 2019

Because if one of them has a claim and refuses to waive it, and then the claim is valid, there would need to be an adjustment of the amount paid to everyone.

2 Answers | Asked in Estate Planning for New York on
Q: Is it protocol for all the siblings to have to turn in their notarized letter before you can receive your check?

Estate was finally settled after 7 years. We received a letter stating the sum of what each sibling will get but before we can get check all siblings have to return notarized letter? Is this protocol?

Michael David Siegel
Michael David Siegel answered on Aug 13, 2019

Yes. The document is called a Receipt and Release, and basically, you agree to take the amount promised in exchange for waiving all claims.

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2 Answers | Asked in Estate Planning, Real Estate Law and Probate for New York on
Q: Who's job is it to get the property deed and change the title, my lawyer, the probate lawyer or the sole heir/executor?

I couldn't find the house deed. My lawyer's P.L. said they could for $500. I eventually paid $10 for an official copy at town hall. I'm still not sure how to change the title, I don't understand the included instructions. My lawyer said he could help. I've paid them approx $9-12K for both our wills... Read more »

Nina Whitehurst
Nina Whitehurst answered on Aug 12, 2019

There is no way any attorney in this forum can answer your question without reviewing your various engagement letters with your NY attorney because the answer depends entirely on the scope of those engagements and the fees quoted.

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3 Answers | Asked in Estate Planning, Tax Law, Elder Law and Probate for New York on
Q: The IRS sent a notice of unclaimed 2017 refund + demand to file 2018 for a now dead person. Do I still need to file?

I'm the executor of Mother's estate + not in good shape to tackle this or pay to have it done. She died on Nov 4, 2018. I would say it's very unlikely she'd owed taxes, considering expenses from her long illness from Mar 2018 till her Nov 2018 death; all her MDW's were made on IRA's, etc. and she... Read more »

D. Mathew Blackburn
D. Mathew Blackburn answered on Aug 12, 2019

You should file 2018 and mark deceased and put the date of death. Without a deceased return the IRS can't know she died.

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3 Answers | Asked in Estate Planning and Probate for New York on
Q: my late husband and his father set up the irrevocable trust whereas my husband acted as a trustee.

We are still married, and we have two minor kids in a marriage. Do my kids have right for share of this trust?

Benjamin Z. Katz
Benjamin Z. Katz answered on Jul 28, 2019

The trust generally spells out what happens when the maker passes away. I assume you father in law was the maker and your husband was the trustee. If no successor trustee is named in the trust, a petition will need to be brought in Court to appoint a trustee. If your kids are not beneficiaries of... Read more »

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2 Answers | Asked in Estate Planning for New York on
Q: How long does it take to get a letter of administration from the time you submit?
Benjamin Z. Katz
Benjamin Z. Katz answered on Jul 27, 2019

If there are no issues that might delay the issuance, it is usually about a month from the time of petition to issuance of Letters of Administration.

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2 Answers | Asked in Estate Planning for New York on
Q: How to determine value of probate property that will be inherited instead of sold? The will stipulates 50/50 division.

one Child is inheriting an apt building and the other is inheriting the parcel of land. How do you determine value of the properties to be able to split value 50/50 as will stipulates?

Has an assessed value been used over an appraisal?

Benjamin Z. Katz
Benjamin Z. Katz answered on Jul 24, 2019

The fastest and easiest way is to have an appraisal done of the apt building and parcel.

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1 Answer | Asked in Estate Planning and Real Estate Law for New York on
Q: I am the estate administrator in Florida but not yet in NYC. Can i sell a house or enter sale contract in NYC?

I am the estate administrator in Florida but not yet in NYC (filed but still going to take time). Can i sell a house or enter sale contract in NYC?

Michael David Siegel
Michael David Siegel answered on Jul 24, 2019

You can start the process. To close your ancillary letters will need to be issued. The title company will require it. Just make sure the contract accounts for this issue.

1 Answer | Asked in Estate Planning and Probate for New York on
Q: Can a family member have the right to deny inheritance because of a adoption stating that you are not a member

Or a hier to the family. He has been telling my other cousins that me and my sister have no claim because we were adopted. And this uncle is my so called Godfather

Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on Jul 22, 2019

Unfortunately, adoption or not, a person has the legal right to leave his estate to whomever he wishes. The only limitation is that if the testator is married, in New York, a certain percentage of the estate must be left to the wife.

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