What if I Don't Have a Will When I Die?
Answer: If there is no Will, your property is distributed according to the state law of intestacy and not necessarily as you planned.
What are Some Reasons to Have a Will?
Answer:
  1. Guardianship: You can choose a Guardian for your children, not the court.
  2. Money Saved: You can save your estate by waiving bond provisions that could be required by the court.
  3. Property to Minors: You can avoid assets going directly to minors (otherwise there might need to be court supervision for the sale of these assets).
  4. Appointment of Executor: You can determine who will take care of your assets and their distribution.
Who Gets my Property if I Don't Have a Will?
Answer: Generally speaking:
  1. Spouse, no children: To spouse.
  2. Spouse, children: Up to a certain amount to spouse, after that amount split between children and spouse (problem-see prior Par. #3- Property to Minors).
  3. No Spouse, no children: To parents, if none, then siblings.
  4. No Spouse, children: To children.

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Do I Need a Will?
Answer:
  1. If you have minor children: Definitely.
  2. If don't have minor children: Probably, unless: a) Your personal wishes fall in line with the laws of intestacy; and b) You do not wish to choose a personal representative to preserve, gather and distribute your assets.
How Long Does a Will Last?
Answer: A properly drawn and executed Will is generally effective until it is changed or revoked.
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Am I Required to Leave My Spouse Anything?
Answer: Yes to a point. Your spouse is entitled to money up to a certain amount and then a portion of the remaining amount.
Am I Required to Leave My Children Anything?
Answer: No.
If I am Married, Do We Get Separate Wills?
Answer: Yes.
When Should I Change My Will?
Answer: Usually when:
  1. There is a change in circumstances;
  2. You wish to change a bequest;
  3. You wish to change the names of Executors, Guardians or Trustees; or
  4. You wish to add or remove someone from the Will.
Who Should I Appoint as Executor?
Answer: The Executor (or Executrix if a woman) should have common sense and good judgment. Geographical proximity to the your property (especially real estate) should be considered as well. The Executor will hire lawyers, accountants and other professionals as needed.
What are Some Typical Excuses For Not Drafting a Will?
Answer:
  1. "My kids will respect my wishes"-It is possible that their present or future spouses could be a problem instead. Also your family might not have a clear understanding of all your wishes. Moreover, family disputes can occur when there are different interpretations as to what your wishes are.
  2. "I want my property to go to my spouse anyway"- Your property might not just go to your spouse. It may have to be split with your children. The problem is that an independent person might have to be appointed to oversee the children's interests (if they are minors). That means that person might have to approve the sale of assets (like your house) which will cost money and prevent your spouse from making independent decisions.
What is Probate?
Answer: Probate applies when there is a Will. During Probate, final debts are settled, and legal title to property is formally passed from the decedent to his/her heirs. Usually, the first step is taken by the person named as Executor, or other interested person who has the original Will. When there is no Will, the process is called Administration.
What are the Basic Steps of Probate?
  1. Collection, inventory and appraisal of all assets that are subject to probate;
  2. Payment of taxes and creditors; and
  3. Formal transfer of estate property according to the Will, or by the state laws of intestate succession if there is no Will.
What Issues Arise with Web/Computer Generated Forms?
Answer: Typical problems:
  1. Most of these forms are not state specific;
  2. It is possible that the proper procedures might not be followed (such as improper individuals being witnesses);
  3. You cannot use a "Self-Proving" Affidavit, so Witnesses typically have to be located after you die and might have to appear in court.  A "Self-Proving" Affidavit can only be used when an Attorney supervises the Will; and
  4. Your wishes might not be properly reflected.
What Other Documents are Part of an Estate Plan?
Answer:
  1. Power of Attorney- Allows you to give authority to another to manage your financial and legal affairs on your behalf.  If there is no Power of Attorney in effect, a court proceeding and the appointment of a Guardian Ad Litem might be required. Many "do it yourself" forms are not "durable" and become invalid precisely when they are most needed ( at the time you become unable to act for yourself).
  2. Health Care Proxy- Allows you to appoint another person to make health care decisions if you should lack the ability or capacity to make these decisions yourself. Even if you are married or a parent-adult child relationship exists, there is no automatic right to act on behalf of the respective spouse, parent or adult child.
  3. Living Will- Allows you to state your wishes about withholding or withdrawing life-sustaining treatments that prolong the process of dying.  It is a good back-up for a Health Care Proxy because it is clear and convincing proof as to what your wishes are, can be used even if your health care agent is unavailable, and can be honored by other states that do not honor the Health Care Proxy.
What is the Dutchess County Surrogate's Court location, phone number and general hours?
Answer:  
  • Address- 10 Market Street, Poughkeepsie, NY 12601
  • Phone Number- 845-431-1770​
The office generally operates on weekdays, from 9:00 AM to 5:00 PM, excluding holidays. 

What is the official filing fee schedule for a Probate or Administration Petition in Dutchess County?
Anwer: The Surrogate's Court filing fees are based on the gross value of the estate passing by Will (or by intestacy if there is no will). The Petition filing fees are as follows (based on the Gross Estate Value):
  • Less than $10,000- $45.00
  • $10,000 but under $20,000-$75.00
  • $20,000 but under $50,000-$215.00
  • $50,000 but under $100,000-$280.00
  • $100,000 but under $250,000-$420.00
  • $250,000 but under $500,000-$625.00
  • $500,000 and over- $1,250.00
Note: These fees are for filing the initial petition. Additional fees may apply for certified documents, filing objections, or other proceedings.

When can I use a Voluntary Administration (Small Estate) proceeding instead of full probate in Dutchess County?
Anwer: A Voluntary Administration, often referred to as a "Small Estate" proceeding, is a simplified and quicker way to administer an estate in Dutchess County when the decedent's assets meet specific criteria (not for real estate). In New York, this streamlined process is available if the total value of the decedent's personal property (not including real estate) is less than $50,000. 

When do I have to file a proceeding in Dutchess County?
Answer: If the primary residence of the decedent was in Putnam County, you would have to file at the Putnam County Surrogate's Court.  This would include 
  • Amenia
  • Beekman
  • Clinton
  • Dover
  • East Fishkill
  • Fishkill
  • Hyde Park
  • LaGrange
  • ​Pawling
  • Pine Plains
  • Pleasant Valley
  • Poughkeepsie
  • Red Hook
  • Rhinebeck
  • Stanford
  • Union Vale
  • Wappinger
  • Washington

CORY A. LEVINE, P.C.

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