With the new year upon us, I thought I would pass along a few suggestions which will make it less likely to avoid ending up in a case like the ones I like to report on in this blog. Law, like medicine, is best practiced preventively so here are a few pointers.
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When someone dies without a will, we say that they have died intestate. Since there is not set of written instructions as to how to dispose of the decedent’s property, we do so pursuant to the rules of intestacy as set forth in the law. Also, since there is no individual or entity named to administer the deceased’s estate, the law provides that a close relative or a person or an entity with and interest in the estate may apply to become the decedent’s administrator. The Administrator is the fiduciary appointed by the surrogate’s court who stands in the shoes of the decedent, marshalls the estate’s assets, pays its debts and distributes the balance pursuant to the law.
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The Dead Man’s Statute provides that the verbal statements of a person who is dead or mentally incapacitated cannot be testified to at trial by an interested party.
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Not all of your assets will pass through your estate and be directed by the instructions you leave in your will.Assets which can be directed by your will are called testamentary assets while self-directed assets which are not directed by your will are called non-testamentary assets. This is really a very simple concept but it is important to understand it in order to properly plan your estate.
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There are certain things you can’t do in life. You can’t roller skate in a buffalo herd. You can’t spit into the wind . We all know you can’t take it with you . Unless you have a signed agreement in recordable form, you can’t disinherit your spouse.
Continue Reading Spousal Right of Election in New York

Before going to court, it is necessary to have standing to be involved in the case as one of the first prerequisites of success. Every classification of legal proceeding has its own requirements as to standing.
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It is not uncommon for a parent to disinherit a child. This is usually done pro forma when leaving an entire estate to a surviving spouse. Parents with younger children generally disinherit them in order to insure that their spouses are left with sufficient assets to raise the kids to adulthood. Adult children are often disinherited in favor of a surviving parent to insure that their parents will have sufficient resources to see them through retirement.
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Probate is the procedure which determines whether or not a will was properly drawn and executed and is the genuine instrument setting forth the wishes and directions of its maker for the disposition of his or her property. In spite of a flood of books and articles constantly demonizing probate and offering us a myriad of ways to avoid it, probate helps to insure that your plans for the disposition of your estate will, in fact, be honored after your death.
Continue Reading What is Probate?