FAQ - Frequently Asked Questions
New York Estate Planning
Mediation
What is an Executor?
The Executor is the person named in a Will to carry out the provisions of the Will and administer the decedent's estate. The Executor is responsible for having the Will probated, collecting the property that will pass under the Will (not joint property, insurance and pension benefits payable to named beneficiaries, etc.) paying the decedent's debts (including funeral expenses), paying administration expenses, and paying any taxes that are due from the estate. Such taxes can include the decedent's final income taxes, gift taxes, the federal or state estate taxes due, if any, and income taxes on income earned by the estate during the period of administration. The administration of an estate can take a few months or a few years depending on its value. During this time, the Executor is responsible for managing the estate's assets (ie. real estate that will pass through the Will) The Executor is responsible for making sure all of the bills and taxes have been paid then distributing the remaining assets in accordance with the terms of the Will. Executors get paid a commission that is a percentage of the "probate estate," less any specific bequests, legacies or devises (i.e., items of real or personal property left by the testator to a specific individual). back to top
What is the Surrogate's Court?
Each county in New York has at least one Surrogate Court where all matters pertaining to Wills and Trusts are determined. The Surrogate’s Court Clerk can provide an Executor many forms necessary for estate administration. Addresses and contact information appear below for Long Island Surrogate’s Court Clerks:
| Nassau County |
Chief Clerk
Surrogate's Court |
Supreme Court Building
Mineola, NY 11501 |
(516) 571-2082 |
| Queens County |
Chief Clerk
Surrogate's Court |
88-11 Sutphin Blvd.
Jamaica, NY 11435 |
(718) 520-3132 |
| Suffolk County |
Chief Clerk
Surrogate's Court |
320 Center Drive
Riverhead, NY 11901 |
(631) 852-1754 |
How is a Will Probated?
Probating a Will is the first step in any estate administration. The Executor must locate the original Will to file with the Surrogate's Court for probate. Its often best to not keep a Will in a safe deposit box because this often results in the Executor being required to hire an attorney to obtain a Court Order to open the box to retrieve the Will.
In New York, all named beneficiaries as all decedent’s distributes (those who would inherit if there was no Will) must be notified that the Will is being submitted to Probate. Anyone who could be adversely impacted by the probate of the Will is given opportunity to object in Court or can sign a waiver if s/he consents to probate. Such a person may sign a waiver (obtained from the Surrogate's Court) indicating he or she consents to probate. back to top
What is the difference between Mediation and Legal representation?
As an attorney, I represent one side of a dispute. As a mediator, I represent the dispute itself. back to top
How is this different?
It is very different. The legal process requires one to advocate for one side and use all ethical and legal means to advance the goal and agenda of one side. Through mediation, a trained mediator works towards agreement between both parties so both parties win. back to top
Does it work?
In certain circumstances, it absolutely works. Disputes between people begin as seeds of doubt and mistrust that when allowed to take root can easily grow into a very expensive legal cases. back to top
How is mediation different than practice of law?
Think about the following business dispute. Two sisters are fighting over one orange. Both want the entire orange and both insist that they get the whole orange and not a portion of the orange.
In the legal system, each sister would retain her own attorney and the attorneys would begin a formalized and expensive fight over the orange. At the end of the day, one sister would win but factually both sisters will have lost through increased personal anger towards each other and large legal bills. The financial and personal costs of the legal battle will exceed the value of the orange.
A trained mediator through the mediation process instead would discover that one sister wants the orange because she wants to use the rind to make orange marmalade… and that the other sister wanted the pulp to make orange juice. A trained mediator would prevent hostilities from increasing; address the dispute so both parties win; all at significantly lesser costs. back to top
How do I know if I need a mediator or attorney?
Typically, my clients contact me as an attorney. I will always recommend mediation when it appears that mediation will better serve my client than legal representation. back to top
Can you do both legal representation and mediation for same case?
Sometimes I begin disputes as legal conflicts and work towards settlement through applying mediation skills. Such an approach is risky in that it requires the other attorney and client to be reasonable. Fortunately, the cost of their legal fees and the risk of loss in court often results in even the most recalcitrant opposing side becoming more reasonable. This is often thought of as using a lawsuit to bring the other side to the table when nothing else works. back to top
If you are paid as an attorney, why would you care about saving your clients legal fees?
From a business sense, my clients tend to stay with me over the years plus tend to refer me to other people. back to top
From a personal sense, I have a deep desire to help people succeed and recognize the limitations of the legal system in achieving my client's goals. I also believe in 'voluntary simplicity' which is a lifestyle that minimizes consumption and the pursuit of wealth and material goods in order to attain a simpler but more meaningful life. back to top
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