Rights of Beneficiaries
The Importance of Hiring an Attorney if You Are a Beneficiary or Fiduciary of an Estate
Why do you need to hire an attorney if you are a beneficiary or fiduciary (executor, administrator or trustee)?
Hiring an attorney is important to protect your interests in the estate and to maximize the inheritance by proper administration of an estate. The Law Office of Bonnie Lawston focuses solely on estate and trust administration and related matters. We pride ourselves on communication with the client by providing information each and every step, advising the client of potential problems before they happen and how to avoid them so it does not result in costly mistakes that sometimes cannot be corrected. Our staff is well trained to work with clients who do not live in New York, but have connections to a New York estate such as the decedent died in New York or had real property in New York. Our law firm can assist you so that you never need to come to New York if you do not want to and there is no added cost for that assistance.
As a fiduciary of the estate
You need to hire an attorney to advise you as to the laws of New York State and to ensure that you comply with the laws when you administer the estate. There are procedures that you must follow when the will is probated or administration (“no Will”) is filed with the court, when the assets are collected, liabilities satisfied and then when distribution is ready. Many times, we have people come to us who have tried to administer the estate on their own, but have encountered major problems. After the funds are distributed, often a beneficiary will complain about something and the fiduciary has no estate funds left to correct the problem and defend themselves in court. Then, the fiduciary is facing possible personal liability as well a paying for the legal costs to defend and correct the complaint. With the proper advice and representation, you will never be in that position with our office. We take all the necessary steps to prevent exposure to such liability.
As a beneficiary of the estate
You need representation of counsel to ensure that your rights are protected. Please note that when the fiduciary hires an attorney and the attorney is paid by the estate, the attorney does not represent you nor does that attorney represent the estate. The attorney the fiduciary has hired represents him or her. So please do not think that the attorney is “for the estate.” They are not!!!!! The estate’s attorney is essentially your adversary. Yes, you can get information from the estate’s attorney but they will not give you advice or tell you if the fiduciary has done something wrong. Without your own attorney to examine the fiduciary’s conduct and how the estate was administered, you may never know and if you do discover something was done wrong, it may be too late to complain or do anything about it.
Before mistakes are made or go unaddressed, hire an attorney who will watch out for your interests. We have represented both sides of estate matters, both small and large, simple and complex and we know how people try to take advantage of situations and how to avoid it, stop it and detect it, if it has occurred. Let us maximize your interests , Contact our office today. Let the “LAW” in LAWSTON work for you.
When is a fiduciary allowed to take their commissions?
The fiduciary is allowed to take their commissions either by court order or stipulation of all parties. If all the assets have been collected and all the expenses have been paid, then the estate is ready to prepare an informal accounting and proper releases for all the necessary parties to review and sign. After the proper documents are signed and returned, then and only then, upon the time of distribution, should the fiduciary take their commissions? If the fiduciary takes their commission prior the proper steps being followed and a judicial accounting is compelled, the fiduciary must return the commissions immediately and will be subject to penalties and interest from the time the commissions were wrongfully taken until they are returned to the estate.
What are the fiduciary commissions?
The fiduciary commissions are determined by the current laws of the State of New York. Currently the commissions are as follows:
- For receiving and paying out all sums of money not exceeding $100,000 at the rate of 5 percent.
- For receiving and paying out any additional sums not exceeding $200,000 at the rate of 4 percent.
- For receiving and paying out any additional sums not exceeding $700,000 at the rate of 3 percent.
- For receiving and paying out any additional sums not exceeding $4,000,000 at the rate of 2 1/2 percent.
- For receiving and paying out all sums above $5,000,000 at the rate of 2 percent.
Set Forth by the Surrogate Court Procedure Act. Sec. 2307.
Please be advised that this commission is taxable income and we advise that everyone speak with their attorney as to whether or not they wish to take the commissions, the advantages and disadvantages.