When will I get my Inheritance

Posted By Law Offices of Steven M. Adler, PLLC || 17-Dec-2014

It would be presumptuous to assume that funds would be available within a month or
so. The probate / administrative process can take several months or longer, so it would not be wise to buy that new car or big ticket item that you've had your eye on. Unfortunately, the distribution of inheritance cash or checks is the last thing that the executor or administrator of the estate will do.

So why does it take so long for beneficiaries to receive their inheritance? The general process for a typical estate can be involved and each state has a specific set of laws that determine the steps required before the estate can be closed. We outline the general process starting with the basic question, "Did the decedent leave a will"?

Step #1: Locating the decedent's Last Will and Testament, and any other important estate planning documents will determine the nature of the estate. If the decedent left a will, then it will need to be probated. Probate is the court-monitored process whereby a will is proved to the satisfaction of the Surrogate Judge. When someone dies without a will it is referred to as dying "intestate." Since the deceased left no directions about the disposition of their assets, New York law provides for how those assets will be distributed among the surviving family members. This process is called administration. With administration the court appoints an "administrator" to manage the estate. Although executors and administrators have different titles, their functions are nearly identical.

For a probate proceeding the original will and a certified copy of the death certificate with the probate petition and other supporting documents need to be submitted to the Surrogate's Court in the county where the decedent lived prior to his or her death. A filing fee will apply which will be determined by the size of the estate.

Step #2: Once the will has been authenticated, the probate judge will appoint an Executor or Administrator in the case where there is no will. All actions by the executor / administrator will be watched by the probate court to ensure that everything is done properly. This will also give greater protection to any heirs or beneficiaries.

Executors / Administrators are responsible for settling the estate, which includes gathering and managing assets and paying the decedent's taxes and debts with the property. Not all assets of an estate go through the probate process, such as joint bank accounts, life insurance, and retirement accounts. Administrators also must obtain an estate identification number from the IRS and may need to open a bank account for the estate. Other duties under probate may include funeral arrangements and contacting lawyers on the family's behalf.

Step #3: Valuing decedent's assets upon date of death. This can be determined through bank, brokerage, and real estate statements. The process may also involve capital gain calculations and handing over gifts such as jewelry and other personal property as stipulated in the will.

Step #4: Pay the decedent's bills and administrative expenses. This step would include notifying / identifying creditors and paying outstanding balances due.

Step #5: File a final income tax return for the decedent and an estate income tax return if the estate earned income as well as the filing and payment of estate taxes, if applicable and in a timely manner.

When all of the steps above have been completed, only then can the remaining assets be distributed to heirs and beneficiaries pursuant to the will in the case of a probate or pursuant to New York State law in the case of an administration. As noted above, this is not a simple process. It can be further complicated by various factors, such as types of assets, taxes due to the state or at the federal level, how many heirs or beneficiaries are involved, if there are any disputes, and how skilled the executor / administrator is at the process.

The probate / administrative process can be a lengthy one so it is best to err on the side of caution and be patient, and avoid financial problems stemming from decisions made prematurely.

If you are named in someone's will as an executor or you are the appropriate person to commence an administration petition, hiring an experienced lawyer to handle the legal aspects is critical.