Klenk Law is a boutique law firm laser-focused on all aspects of Estate Law. For our New York Clients clients, we divide the practice into two complimentary divisions:
Read below for more information.
Advising our Estate Planning clients includes Will drafting, designating Powers of Attorney, Special Needs Planning, Probate, reducing taxes and Business Succession. At larger law firms, Estate Law is likely only a small part of their practice. In our practice, estate clients always come first.
We believe estate planning is a lifelong activity and we see ourselves as your long-term trusted advisor. Quite simply, we want to help you achieve your goals, and we know how to do so. Klenk Law is committed to providing the very best legal counsel and estate planning techniques for our New York clients.
Klenk Law is committed to providing the very best legal counsel and estate planning techniques for our clients in New York City and the surrounding area.
To learn more about our firm CLICK HERE.
Why Work With Us?
CONVENIENT HOURS & LOCATIONS: Evenings, weekends, whatever works for you, we will make it happen.
EASY TO WORK WITH & EASY TO UNDERSTAND: We excel at explaining complex tax & asset protection techniques so you can make the best decisions for yourself and your Family.
FAIR & TRANSPARENT PRICING: Our deep understanding of estate law gives us the ability to quickly pinpoint solutions to reach your goals, saving you time & money.
FLEXIBLE ESTATE & PROBATE SERVICES: We can help you with a single issue or the entire process.
New York Wills, Revocable Trusts and Estate Planning
Estate planning may seem like a tedious and burdensome activity, but that doesn’t have to be the case. At Klenk Law, our goal is to make it easy for you. Owner and Principal Attorney Peter Klenk has a gift for making complex legal and financial techniques very easy to understand. During your initial free consultation, he will clearly explain the various options available to protect your assets, limit your tax exposure, and how to avoid unnecessary probate costs or future litigation. We will guide you step-by-step through making the best decisions for you and your family.
We Make Estate Planning In New York City Easy; It’s What We Do!
To learn more about our estate planning process CLICK HERE.
New York Probate and Estate Administration Attorneys
Dealing with the legal aftermath when a loved one has passed away or is incapacitated is stressful. If you have been named the Executor of an Estate, or a Guardian or Trustee in the New York metro, our job is to advise you. Assisting Executors to quickly and efficiently probate New York estates is what our probate lawyers do!. Our Probate Attorneys provide step-by-step guidance to protect executors and trustees and ensure proper estate administration. We can help you with one or two aspects of Probate or the entire process; we are flexible.
NY Probate & Estate Administration, It’s What We Do!
To Learn more CLICK HERE.
New York Estate Planning and Probate FAQs
The following frequently asked questions address estate laws and procedures specific to New York.
What Are Your Estate Planning Practice Specialties?
We provide our New York clients Estate Planning, Probate, and Estate Litigation services that include:
What are the Legal Requirements for a Valid Will in New York?
To make a valid Will in New York, an individual must be at least 18 years old and have a sound mind and memory. The Will must be in writing and signed at the end by the testator. If the testator is unable to sign the will, another person may do so for the testator at the testator’s direction and in the testator’s presence.
The Will must be signed or acknowledged in front of two witnesses, and the testator must declare in front of these two witnesses that the documents are the testator’s Will. Each witness must then sign his or her name and address.
New York will accept Self-Proving Wills which will allow the Will to be probated without having to locate witnesses. There are specific cases when witnesses will still need to be found which include (a) the physical appearance of the will requires explanation (there are deletions, additions, etc.), (b) the Will has been signed by a mark, (c) testator dies within 3 months of executing the Will, (d) it appears the Will was not drawn and executed under the supervision of an attorney.
In New York, the person presenting the Will for probate must be a party interested in the estate. This can include a creditor of the estate. In New York, a Will is not admitted into probate unless a Court is satisfied that the Will is genuine and was validly executed.
You can read more about Wills HERE.
Can I Change or Completely Revoke my Will in New York?
You can make changes to, or revoke your will at any time. There are, however, some important rules to follow.
One way to change your will is to make a codicil, which is an amendment to your will. Another way is to make an entirely new will which revokes and takes precedence over any and all older wills. A codicil is a separate document and must be signed and witnessed the same as a regular will, or it will not be honored. Because of these requirements, it is easier just to make a whole new will.
It is important not to make any markings on your will once it has been witnessed and signed. This is absolutely vital. If you cross out a name or add any other writings to a will that has already been signed, you risk making the whole will invalid.
To revoke a Will without making a new one, all you have to do is intentionally tear it up, deface it, or otherwise destroy it. If this occurs accidentally, your Will is not invalidated.
You can read more about Wills HERE.
Can I Revive My Old Will by Destroying My New One?
In New York you cannot revive an old will simply by destroying the new will you have signed. It is possible to revive your old will; however, this can only be done in one of three ways: – By executing a codicil, which stated your intent to revive your old will – By executing a new writing stating you are reviving your old will. This writing must be executed in the same manner as a valid will. – By republishing your prior will by re-executing it in front of 2 witnesses.
What Happens in New York if I Marry, Divorce, or Have Children after I Sign my Will?
In New York, a will and its codicils are not invalidated or revoked because of a later marriage or birth of a child. In such a case the surviving spouse is entitled to take their “elective share” of the estate of the testator (see below), and the child will be entitled to the appropriate share as though the testator died intestate (see above). This is true unless the will and/or codicil shows that the spouse and/or child was intentionally excluded from the will and/or codicil.
Learn more about the essential legal documents for life’s big transitions HERE
Is a handwritten Will Valid in New York?
A handwritten will is called a “holographic will.” New York recognizes handwritten wills only in very limited situations:
- By a member of the armed forces of the United States while in actual naval or military service during a war or other armed conflict in which members of armed forces are engaged.
- Person who serves with or accompanies an armed force engaged in actual military or naval service during such war or armed conflict
- Mariner while at sea
To be accepted as a handwritten will, the making of the will must clearly be established by two witnesses.
Do I Have to File my Will with a Court or in Public records?
In New York, you are not required to file your will with a court or public record during your lifetime.
Can I Disinherit Someone?
Depending on who it is you wish to disinherit, the answer varies.
In New York, you may leave your spouse out of your will, but unless you have signed a valid prenuptial or postnuptial agreement, your spouse will be entitled to what is called the “elective share.” In New York, the spouse would be entitled to the greater of $50,000.00 or 1/3 of our estate through this elective share. If your spouse is going to take an elective share of your estate this request must be filed within six months of the date of service of a copy of the notice of administration or within two years after the date the decedent died. This request must be filed with the county where the estate is probated.
In New York, you may disinherit your children or any other relatives. To ensure that it is clear that you are intentionally disinheriting an individual it helps to state this in your will so there can be no question about what you intended.
Where Can I get my Will Notarized?
Your bank is an excellent place to locate not only a notary but also witnesses for your documents.
Do I Need a Lawyer to Make a Will in New York?
As long as a Will has satisfied all the requirements set forth by the state in which you live or the state in which you sign the Will, the Will is valid. No state has made having a lawyer draft the document be a requirement of a valid Will. The problem, of course, is that unless you regularly work as an Estate Planning Attorney, you likely do not know what is required to make a valid Will or Trust. A lawyer that focuses exclusively on Wills and Trusts can help make sure your wishes are followed after your death.
Does your Firm Provide Estate Planning for the New York LGBT Community?
Certainly! Though same-sex marriage is accepted law, there are still concerns unique to the LGBT community. Historical prejudice and existing hostility both political and familial adds a layer of complication other couples need not address. Please read my article about New York LGBT Estate Planning.
What Happens to Your Estate if you Die Without a Will in New York?
When dying without a will, you are “intestate.” This means that the state, not you, decides how your property is to be distributed. New York’s rules for intestate succession say that your property will be distributed in the following manner:
If your spouse survives you, your spouse receives:
- All of your property if you die without children
- $50,000.00 plus 1/2 of the rest of your estate, if you die with children (the rest divided equally among your children)
If you have no surviving spouse, your property will be distributed in the following manner:
- Your children in equal shares, or if you have none,
- to their children in equal shares, or if you have no descendants;
- Your surviving parent or parents, or if you have none;
- Your surviving sibling or siblings, or their children by representation; or if none
- Your grandparents or the children of your grandparents, 1/2 of your estate going to your mother’s side and 1/2 of your estate going to your father’s side, or if you have none;
- Great-grandchildren of your grandparents
In New York, any relatives you may have that are adopted, are treated as though they are your full-blooded relative.
What is New York Probate?
Probate in New York refers to the process where the State of New York recognizes the executor or administrator as the estate’s official representative. When someone dies, ownership of all assets in that person’s name will now pass to someone else. The Probate process provides the rules and oversight of that process. For a New York estate, the initial step is to have the will recognized as valid by the Surrogate’s Court of the county where the deceased was a resident. For example, if the deceased was a resident of Long Island, New York, the will is filed with the Suffolk County Surrogate’s Court. If there is no will, then the process begins with the selection of the person who will serve as the Administrator of the estate. If the petition is approved for probate, then the paperwork is given to the executor or administrator authorizing them to represent the estate. Probate has begun.
Where do I Probate the New York Will?
The will is registered with the Surrogate Court of the County that the deceased was a resident.
What if I am an Executor, but I Don’t Live in New York?
Our experienced Probate teams can make arrangements for you to be sworn in as executor outside of New York. In most cases, we can make arrangements so that you will never have to come to New York at all. Because we focus our practice on Probate matters, we can help make the probate process as easy for you as possible.
How Long Does Probate Take in New York?
There is no set time limit for an estate’s probate. As explained below, I often tell executors to tell the heirs that the estate will be open for at least a year, but we can often close the estate earlier (making the executor look good). The actual time the estate will be open will depend upon the estate’s assets and the taxes that need be paid.
New York’s Probate system is efficient, but there are certain steps over which you have no control. For example, certain tax returns need be filed, and the forms might not even be available until the year following the death. The estate might contain hard to sell assets, such as an art collection or real estate, so the estate will have to stay open until the assets are sold. For a more detailed estimate, feel free to contact us with the details of your estate.
Here are a few common examples of tasks that will force an estate to stay open longer than others:
The deceased’s final income tax return. If the deceased lived even one day into the year, you might have to file his or her final income tax return. In New York, this will mean at a minimum filing a final 1040. You may not be able to file these returns until the year following the death.
The Estate’s Income Tax Return: If the estate creates income, then the estate must file a Form 1041 Return with the IRS. Once filed, it can take months to determine if the return has been accepted as filed. Sale of
Real Estate: If the estate has real estate, preparing the property for sale, marketing the property and then closing the sale can take well over six months. Specialized property, such as commercial property or a farm can take even longer.
Creditor Claims: Creditors of a New York estate can bring their claims, and the executor must deal with the claims. If the executor releases the estate’s funds to beneficiaries, and a legitimate creditor is discovered, the executor might be personally liable to the creditor if the estate funds cannot be recovered from the beneficiaries. Most executors find it wise to hold the estate assets until the date for creditor claims has passed.
What if the Decedent Left No Will?
If a New York resident dies without a will, the estate assets will pass according to the New York Rules of Intestacy. The Probate Lawyer will then file a different petition with the Surrogate’s Court to have an Administrator named, rather than an executor. The rules that cover who can serve as Administrator are rather complex, so if you have a relative who died without a will in New York, feel free to contact us to help explain the process.
What are an Executor’s Duties and Responsibilities?
Once a probate petition is accepted, the executor or administrator’s job is to gather all the assets, pay creditors, satisfy all income/inheritance/estate taxes, and then distribute the remaining assets as the Will directs. Each estate is different, and the amount of work and responsibility may vary. The estate’s location will also affect the personal representative’s responsibility. A New York estate must make certain reports to the Surrogate’s Court, which differs from the reporting for a Philadelphia estate’s reports to the Philadelphia Register of Wills. Strangely, even within a state, the various reporting standards may differ.
A Probate Attorney versed in the rules of New York probate can advise the executor on these reports. In the end, before distributing any funds, the executor should submit a report of what has been done to the beneficiaries and obtain a complete release of liability. Without this release, the executor can be forced to return to court years later and account.
As New York Probate Attorneys, we regularly represent executors, administrators, and personal representatives and guide them through the probate process. We work with you to analyze your particular estate and advise you of what options exist to bring the estate to a close.
What is an Executor’s Accounting?
An executor’s accounting is the report of the executor’s financial actions from the date the executor began serving until the end. It shows what was collected, what happened to those assets, any gain or losses on those assets and, in the Schedule of Distributions, how the executor plans to distribute the assets to the beneficiaries. In New York, these accountings can either be informal accountings or formal accountings.
You can learn more about Accountings Here.
Why Should the Executor Prepare an Accounting?
The executor should always obtain a release of liability from the heirs. The heirs, though, will often not wish to release the executor unless the executor can “account” for all the assets of the estate and explain all the expense incurred. To satisfy the heirs, the executor will need to provide an “accounting” of the assets and expenses.
Can the Beneficiaries Force the Executor to Prepare an Accounting?
In New York, the heirs can force the executor to account by filing a Petition. If they satisfy the judge, an order to account is issued.
What if the Executor Cannot Explain Where Assets Went, or Why Expenses Were Incurred?
If the numbers do not add up, the executor may be found personally responsible for any shortfall. The court can “surcharge” the executor for the difference.
You can learn more about Surcharge Actions Here.
I am an Executor, How Can a New York Probate Attorney Help me With an Accounting?
When filing an accounting, the Court requires the account to follow a specific format. The accounting must also be submitted with a specific petition. Further, accountings and the accompanying petitions may vary from County to County within New York. An experienced Probate Attorney who focuses in accountings is familiar with these differences. It is better to provide the Court a Petition in the correct format, rather than having the judge find it incomplete and order the Petition refilled.
I am a Beneficiary, How Can a New York Probate Attorney help me with an Accounting?
At times an executor may refuse to provide a beneficiary with an acceptable accounting. The Court has created a system that allows a beneficiary to force the executor to provide an accounting. Our firm has been forcing executors to file Accountings for over 20 years and, once the accounting is obtained, our background in estate planning and tax allows us to help you interpret the accounting and search out discrepancies for your objections.
What Tax Returns Does a New York Executor File?
It is important that all tax returns are filed correctly and in a timely fashion. The Executor or Administrator is Personally Liable for errors that harm the beneficiaries. Filing a late tax return means interest and penalties for which the executor may be personally liable. When an executor hires a Probate Attorney, that Lawyer’s primary job is to advise and protect the executor. Probate Lawyers are well versed in preparing all estate related tax returns and can help make sure all returns are filed correctly and timely. In New York an executor may have to file the following returns:
- New York Estate Tax Return
- The Deceased’s final Form 1040 (Income tax)
- The Deceased’s final New York State and Local Income Tax Returns
- The Form 706 (Estate Tax)
- The Form 1041 (Estate’s income tax)
- The New York State and Local Returns for the Estate’s Income
- The Form 709 (Gift Tax)
- Payroll Taxes
- Specialized Taxes that the Deceased’s business might owe
Do I Need to Come to New York to Probate the Will?
If you have the original will and an original death certificate, our firm can set up a process where you are sworn in as executor in your home county. There is no “reading of the will” required, so for most estates our clients never have to come to New York.
Please contact us for a free consultation regarding any of your Probate needs in New York.
Our New York Location
We strive to make our services available so that you never need to leave your home. We can gather most information by phone, email or video conference. If necessary, we can even come to your home.