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My father recently and unexpectedly passed away about one month ago.
He did not have a will or trust for any of his assets. He had a 401k,
annuities, and life insurance policy (~$250,000 total assets), which
my mother is named the beneficiary in all cases. I am also named a
beneficiary in some of the cases (I am the only child). He and my
mother are both named on the mortgage (~150k left to pay). Do we need
to hire a probate lawyer for this situation or can probate be avoided?
Can the assets be passed on to us without going through the courts?
What kind of fees and taxes are we talking about for this? And I keep
hearing that this process could take years. How would I go about
looking for a lawyer? Thanks for your time.
JR
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My father recently and unexpectedly passed away about one month ago.
He did not have a will or trust for any of his assets. He had a 401k,
annuities, and life insurance policy (~$250,000 total assets), which
my mother is named the beneficiary in all cases. I am also named a
beneficiary in some of the cases (I am the only child). He and my
mother are both named on the mortgage (~150k left to pay). Do we need
to hire a probate lawyer for this situation or can probate be avoided?
Can the assets be passed on to us without going through the courts?
What kind of fees and taxes are we talking about for this? And I keep
hearing that this process could take years. How would I go about
looking for a lawyer? Thanks for your time.
The estate appears to be non-taxable. Most or all the assets probably
passed without probate; in NY real estate passes automatically (you
need a death certificate). if there are leftover assets that are in
your late father's name alone they can be dealt with by "voluntary
administration": get the forms from the surrogate's court in the
county of residence. if you decide you need a lawyer you can hire one
on an hourly basis.
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The estate appears to be non-taxable. Most or all the assets probably
passed without probate;
I am not a NY lawyer, but I have no reason to doubt what you say so
far is true.
in NY real estate passes automatically (you
need a death certificate).
It does? How can that be? Who does it pass to? Maybe in OP's case
the only intestate heir is the surviving spouse, but what if you've
got a hodgepodge? I would love to see a citation to your authority
for that proposition.
OP said nothing about the realty being held as joint tenants with
right of survivorship (JTWROS). If the house _is_ held as JTWROS, I
agree with you, it passes immediately to the surviving joint owner,
whether or not that is the spouse. But if not, are you still saying
the realty passes immediately? To whom? What if the testator's will
gives the house to a friend, or to charity? What if there's a dispute
over who gets the house?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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On 2/9/04 4:02 pm, in article pedej0p73apqmsfj0dimed8rdotb11fhm5@4ax.com,
"Michael Jacobs" <mjacobslaw@comcast.net> wrote:
in NY real estate passes automatically (you
need a death certificate).
It does? How can that be? Who does it pass to? Maybe in OP's case
the only intestate heir is the surviving spouse, but what if you've
got a hodgepodge? I would love to see a citation to your authority
for that proposition.
....
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
With all due respect, Mr. Jacobs, you are not, as far as I can tell (and I
have checked the Office of Court Administration's Web site at
http://tinyurl.com/aohn )
a member of the New York Bar. I would not presume to make a statement on
Maryland law without providing a citation. But I am qualified to do so with
respect to those jurisdictions in which I am admitted.
That (and my experience over 40 years) notwithstanding, I did at least a
Google search (which you also could have done had you been more trusting).
Even dismissing secondary sources like one lawyer's bumpf at
http://www.dcreid.com/forms/estate.rtf
one need not dig through the Estates Powers and Trust Law to find the rule.
Try Brewster v. Gage, 280 U.S. 327 (1930)
tp://laws.findlaw.com/us/280/327.html
a tax case dealing with New York property, and noting " Upon the death of
the owner, title to his real estate passes to his heirs or devisees. A
different rule applies to personal property. Title to it does not vest at
once in heirs or legatees."
Also, see forms 423 and 423a at
http://www.tenant.net/Other_Laws/RPL/rpl12.html
Unfortunately I'm on vacation this week and don't have access to an
appropriate treatise to give you more. But next week I will be in the NYU
law library and doubtless can pinpoint the exact basis for the automatic
vesting of real estate on death. No surrogate (NY probate judge) has ever
asked me for it; but you want it so I'll have a look.
As examination of the forms will show, there are practical ways of proving
heirship to the satisfaction of the courts and (more importantly perhaps)
the title insurance companies.
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On 2/9/04 4:02 pm, in article pedej0p73apqmsfj0dimed8rdotb11fhm5@4ax.com,
"Michael Jacobs" <mjacobslaw@comcast.net> wrote:
in NY real estate passes automatically (you
need a death certificate).
...
With all due respect, Mr. Jacobs, you are not, as far as I can tell (and I
have checked the Office of Court Administration's Web site at
http://tinyurl.com/aohn )
a member of the New York Bar.
Which I freely admitted, in the part of my post you did not quote.
There's no need to be so formal about checking up on it.
I would not presume to make a statement on
Maryland law without providing a citation.
I'm not making statements. I'm asking questions. I said, in the
part of my post you did not quote, that I had no reason to doubt that
what you said was true. I just found it astounding, and was
interested in an explanation.
But I am qualified to do so with
respect to those jurisdictions in which I am admitted.
Great, then maybe you can explain how, in practical terms, a
decedent's real estate can be transferred to an unrelated arms-length
third party without going thru probate.
I'm accepting as true your statement that title instantly passes to
the heirs. But who determines who are those heirs? If there is more
than one, do they all have to agree, before the property can be sold
and its value included in the decedent's estate, to be distributed to
the heirs or legatees? Legally, there is perhaps just a semantic
difference between saying that title vests immediately, but that
something else has to be done before the vested owners can sell it,
vs. saying that title passes to a Personal Representative who has the
power to do whatever the law or the Will require, and which does not
vest in the heirs or legatees unless or until they receive a
distribution from the Estate (after payment of debts, etc.)
That (and my experience over 40 years) notwithstanding, I did at least a
Google search (which you also could have done had you been more trusting).
Please don't get an attitude. I don't. I trust you. In my first
post, I said I did, and had no reason to doubt you. All I did was ask
for an explanation of an apparently true fact I found astonishing, and
for some sense of how that legal concept of immediate vesting actually
worked out in practice.
I didn't want to Google it. I wanted to discuss it with somebody
here at MLM.
Or should we all just fold up the Usenet newsgroups as outmoded and
quit talking to each other, since we can find everything we want on
Google?
Even dismissing secondary sources like one lawyer's bumpf at
What's a "bumpf"?
http://www.dcreid.com/forms/estate.rtf
one need not dig through the Estates Powers and Trust Law to find the rule.
Try Brewster v. Gage, 280 U.S. 327 (1930)
tp://laws.findlaw.com/us/280/327.html
a tax case dealing with New York property, and noting " Upon the death of
the owner, title to his real estate passes to his heirs or devisees. A
different rule applies to personal property. Title to it does not vest at
once in heirs or legatees."
Also, see forms 423 and 423a at
http://www.tenant.net/Other_Laws/RPL/rpl12.html
Unfortunately I'm on vacation this week and don't have access to an
appropriate treatise to give you more. But next week I will be in the NYU
law library and doubtless can pinpoint the exact basis for the automatic
vesting of real estate on death.
You don't have to do that, at least not just because of my casual
question on a discussion group. I'm not asking you to waste time.
What I would appreciate, though, from you or anybody else, is an
explanation of how this really works in practice, as in OP's case.
Maybe I'm using the wrong words. Is there a difference between
Surrogate's Court and Probate Court? If a piece of property does not
have to pass through Probate, isn't there still _some_ formal
procedure that it has to pass thru in order for the heirs to be able
to transfer title to a 3rd party holder, and convert the real estate
into money to distribute among themselves? That's my real question.
No surrogate (NY probate judge) has ever
asked me for it; but you want it so I'll have a look.
Your case citation was fine. Don't look it up just on my account.
As examination of the forms will show, there are practical ways of proving
heirship to the satisfaction of the courts and (more importantly perhaps)
the title insurance companies.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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On Mon, 06 Sep 2004 16:58:37 -0400, Tam <tam_kz@yahoo.ca> wrote:
On 2/9/04 4:02 pm, in article pedej0p73apqmsfj0dimed8rdotb11fhm5@4ax.com,
"Michael Jacobs" <mjacobslaw@comcast.net> wrote:
in NY real estate passes automatically (you
need a death certificate).
...
With all due respect, Mr. Jacobs, you are not, as far as I can tell (and I
have checked the Office of Court Administration's Web site at
http://tinyurl.com/aohn )
a member of the New York Bar. I would not presume to make a statement on
Maryland law without providing a citation. But I am qualified to do so with
respect to those jurisdictions in which I am admitted.
Which would be where, exactly? Ontario?
That (and my experience over 40 years) notwithstanding, I did at least a
Google search (which you also could have done had you been more trusting).
Even dismissing secondary sources like one lawyer's bumpf at
http://www.dcreid.com/forms/estate.rtf
one need not dig through the Estates Powers and Trust Law to find the rule.
Try Brewster v. Gage, 280 U.S. 327 (1930)
tp://laws.findlaw.com/us/280/327.html
a tax case dealing with New York property, and noting " Upon the death of
the owner, title to his real estate passes to his heirs or devisees. A
different rule applies to personal property. Title to it does not vest at
once in heirs or legatees."
Also, see forms 423 and 423a at
http://www.tenant.net/Other_Laws/RPL/rpl12.html
Unfortunately I'm on vacation this week and don't have access to an
appropriate treatise to give you more. But next week I will be in the NYU
law library and doubtless can pinpoint the exact basis for the automatic
vesting of real estate on death. No surrogate (NY probate judge) has ever
asked me for it; but you want it so I'll have a look.
As examination of the forms will show, there are practical ways of proving
heirship to the satisfaction of the courts and (more importantly perhaps)
the title insurance companies.
Except that your generalization was wrong. Real estate in NY does NOT
pass automatically unless it is held in a Tenancy by the Entirety or
as Joint Tenancy With Right of Survivorship.
Real estate not held as above passes to the ESTATE, not to any one
individual, spousal election and family rights laws notwithstanding.
And before you get your knickers in a twist, I AM a NY attorney, a
cum laude graduate of law school. Something much more than you appear
to be.
You might want to defer to us NY attorneys when dealing with NY law,
and keep yourself retricted to Canada.
Falc
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