While most people who are appointed Powers of Attorney understand their general duty to act only within the best interests of the person for whom they are serving as a Power of Attorney, and to not undertake transactions which solely benefit themselves, most of them do not understand their duty to account which is required by statute. It is important that a Power of Attorney carefully account when utilizing a Power of Attorney to undertake financial transactions, as this issue could come back to bite them if they do not properly account.

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In the process of probating and administering a Last Will and Testament of a Decedent, questions may arise whether assets owned by the Decedent are considered Estate assets or non-estate assets. This is called the distinction between probate and non-probate assets. It is important for determining Estate taxes to make this distinction.

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The general conception by most people is that a Last Will and Testament must be signed by the Decedent in the presence of two witnesses. While this is undoubtedly the preferred method for a Last Will and Testament to be executed, it is not the only way that a Will may be deemed validly executed by a Decedent.

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During a Will contest, a question may rise as to who is an interested party with regard to an estate. This question is not quite as simple as it may appear at first sight. In fact, the interested parties may be substantially greater than the party initiating the Will contest might have anticipated. As discussed below, interested parties are not merely those who are listed under the Last Will and Testament.

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This blog will explore the possibility of probating a copy of a Decedent’s Will if the original document cannot be located. Typically, the County Surrogate will only accept for Probate an original of a Decedent’s Last Will and Testament. If for some reason an original of a Decedent’s Will cannot be located, a party may apply to the Court to Probate a copy of the Decedent’s Will.

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In general, the time to contest a Last Will and Testament is very short. An in-state resident who is aware of the notice of probate will have four months to challenge a Will from the time it is submitted to probate. On the other hand, an out of state resident would have six months to challenge a Last Will and Testament once it is admitted to probate.

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After a person passes away, their assets are typically divided into probate assets, which are assets which pass through the Estate, and non-probate assets, which are assets which pass outside of the Estate.

Probate assets are those to which a beneficiary is not specified, and thus, the assets become part of the Decedent’s Estate.

Non-probate assets those in which a direct beneficiary is specified by the instrument itself, and therefore, these assets pass outside of the Estate.

Traditionally, an IRA, a joint bank account, and other investment vehicles are considered non-probate assets provided the beneficiary designation or survivorship designation is properly executed.


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