Kevin Kiley Talks about Wills, Family Trusts, and Estate Planning, Part 2

Kiley Law Firm, located in Great Neck, New York. Specialize in medical malpractice, personal injury, corporate real estate, and estate planning. Here, Kevin Kiley Talks about Wills, Family Trusts, and Estate Planning, Part 2

Interviewer: That raises another interesting point, that we hear the term that if a person did not file a will that it goes to probate, and people start hearing, "Oh, the word "probate," I'm going to lose a lot of money, or the family could possibly lose a lot of money." Is that really the case that takes place?

KK: Well, let me just clarify the terms. When you say if someone did not have a will, in that case they actually have what they call an administration. A probate proceeding involves by definition the probating of a last will and testament. In an administration proceeding, you're going to court saying this person had no will, and you're asking to administer the estate. The ultimate duties of the executor and the administrator are similar; the administrator is charged with ascertaining the assets, paying off the debts, taking care of the taxes, and the bills of the last illness, and distributing in that case in accordance with the direction of the New York State legislature. So, for instance, if the legislature says if your spouse passes away and you're surviving him or her, and you have children, the spouse receives the first $50,000 of assets and one half of the remainder. The remaining half would go to the children, which, when there's no will, may not have been the intention of the decedent. It also then necessitates the appointment of a guardian for the child to manage the child's assets or the assets that the child receives through the administration.

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