Legal Question in Wills and Trusts in New York

Re: paying taxes, responsibility of beneficiaries or ''estate''

First, please note that Powers of Attorney terminate at a person's demise.

Next, to get access to your mother's assets, you need to commence a proceeding in the Surrogate's Court. If you have a Will, you commence a probate. If there is no Will, then you commence an Administration.

The Executor named under a Will has no power to act until appointed by the Court. The mere naming of an Executor under a Will does not confer him/her power to act.

The Executor will need to sign an Executor's Deed for the sale of the home. If monies are loaned to the Estate by family to pay taxes, maintenance, etc, then the loans may be debts of the Estate, and payable from assets or net sale proceeds.

Steven A. Kass, Esq.

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Re: paying taxes, responsibility of beneficiaries or ''estate''

You do not say if there was a Will or if your mom died without a Will (intestate). In either case, someone needs to be appointed by the Surrogate's Court to have authority on behalf of the estate, either by a probate of the Will or the appointment of an administrator (all children are entitled to be administrators, but some can waive out for simplicity). If a title company will allow it, the Deed can be given (on sale) by all children and their spouses if any are married, rather than by the court-appointed representative. A Power of Attorney (I think you are using this term improperly to mean the court empowered representative, rather than a document betwen the siblings allowing one or more to represent all of you in the sale) could be used to make the closing on a sale easier. Since you have inherited the property immediately on the death of your mother, the children are technically personally responsible for the payment of taxes. However, if you have access to estate funds and can use them, it is irrelevant where the tax payment monies come from, as a payment from estate funds is for the benefit of all of you anyway. It would just be considered an advance against your ultimate inheritance. Getting someone appointed to be the formal estate representative is the first thing to do. This should be necessary to access your mom's bank account anyway. If one of you had a Power of Attorney from your mother, its authority ended with her death and cannot still be used to write checks on her accounts.

Re: paying taxes, responsibility of beneficiaries or ''estate''

Dear sir or madam:

If you have already set up a checking account in the name of the estate, then you (or the executor) may pay debts from that account. Those amounts will later be deducted from the overall value of the estate.

Alternatively, the executor, attorney-in-fact, or any one of the children may pay the taxes and get reimbursed by the estate as soon as practicable.

Sincerely,

Anthony S. Park