Practice Areas and Legal Definitions

Probate:
Probate is the legal process of transferring property following a person's death. Although probate customs and laws have changed over time, the purpose has remained much the same: an individual formalizes his or her intentions as to the transfer of his or her property at the time of death (typically through a will); his or her property is collected, certain debts are paid from the estate, and the property is distributed accordingly.

Wills:
A will is a written instrument containing directions on how the assets and property of the testator (individual creating the will) shall be divided upon his or her death. Wills can also contain instructions regarding the care of minor children, gifts to charity, and formation of posthumous trusts. In order for a will to be legally valid, the testator must sign the will in the presence of two witnesses, and he or she must be mentally competent and not acting under duress or under the controlling influence of another.

Will Contest Litigation:
A Will Contest is a type of litigation that challenges the admission of a will to probate. Issues that are likely to spur the contesting of a Will include: 

• the testator lacked mental capacity, i.e. was senile, delusional, or of unsound mind at the time the documents were created
• the testator was subjected to fraud, coercion or undue influence during its creation and implementation
• there are ambiguities in the document, or
• the will is a forgery or does not conform to legal requirements as to the number and nature of the witnesses.

If the will is thrown out, the court, depending on state law and the specific facts and circumstances, may: disallow only the part of the will that was challenged; throw out the entire will, distributing the property as if the person died without a will; or use the last previous will.

Probating Estates:
Estates are categorized as probate or non-probate property. Probate property is property that is transferred by the provisions of a will. Non-probate property is property that is either jointly held and passes by right of survivorship, is directed by beneficiary designation such as an IRA or a life insurance policy, or passes according to the terms of a trust.

Powers of Attorney:
Powers of Attorney are governed by the law of agency, a branch of common law concerned with the delegation of power from one person (the principal), to another (attorney-in-fact or agent). 

When a person becomes incapacitated, the government or the court often steps in and appoints someone to represent and make legal decisions for the incapacitated person. One of the ways to avoid government or court intervention, and the appointment of a stranger to act as your guardian, is to use a Power of Attorney. A Power of Attorney is a written document that can be limited in scope, or it can allow one person to give another the full power and authority to represent him or her. There are two types of Power of Attorneys; one covering assets and one covering health care decisions.

If you or someone you know needs the assistance of an experienced New York City family law or probate lawyer, contact Joseph A. Ledwidge, Esq., today at 866-740-1947, or use the contact form provided on this site to schedule your free consultation. 

Probate Frequently Asked Questions

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 866-740-1947.

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
• Conservatorships 
• 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

Professional Profile

Attorney Joseph Ledwidge works hard to protect and advance each client’s interests and rights in an efficient, cost-effective, and professional manner. If you or someone you know needs the assistance of an experienced New York City family law or probate lawyer, contact Joseph A. Ledwidge, Esq., today at 866-740-1947, or use the contact form provided on this site to schedule your free consultation. 

FIRM ADDRESS:
Joseph A. Ledwidge, Esq.
Law Offices of Joseph A. Ledwidge, P.C.
170-26 Cedercroft Road
Jamaica Estates, NY. 11432
Phone: 866-740-1947

Hours: M-F, 8:00AM-5:00PM
After hours appointments available

MEMBERS OF THE FIRM:
Joseph A. Ledwidge, Esq.

EDUCATION:

• Hammersmith & West London College, London, UK: Business & Finance
• Thames Valley School Of Law, London, UK: Graduate 1996

COURTS ADMITTED:

• New York, 1998

PROFESSIONAL AFFILIATIONS:

• New York State Bar Association

PRACTICE AREAS:

• Probate
• Wills
• Will Contest
• Estate Administration
• Spousal Right of Election
• Estate Litigation
• Family Law
• Divorce
• Separation Agreement
• Pre/Post-Nuptial Agreements
• Child Custody
• Child Support