Recent passed parent had Vanguard TOD and will. What now?

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palanzo
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by palanzo » Tue Feb 04, 2020 1:10 pm

bsteiner wrote:
Tue Feb 04, 2020 1:06 pm
VanGuppy wrote:
Mon Feb 03, 2020 5:45 pm
...
What happens when there are known bills coming due serially before 7 months have elapsed. Wouldn't distributions have to made to pay the bills on time? By distributions you must mean beneficiaries, correct? What if the executor is a beneficiary? Maybe this is what LadyGeek meant by 2 hats. How does the 7 months relate to probate close date? Finally can you relate this all back to the original question, i.e. TOD accounts, not under probate, being claimed by the beneficiary not the executor, unless financial institution has contrary rules (perhaps ala VG)?

Maybe there's really, really, no rush.
Distributions means to beneficiaries. They get what's left after debts, taxes and expenses.

New York doesn't have a "probate close date." If you wind up the estate and 20 years later you find another asset (that occasionally happens) you're still the executor and you can get a new certificate from the court for $6 and collect the newly discovered asset.

TOD assets pass outside the Will. They can create lots of problems so except in tiny estates we try to avoid them except for life insurance and retirement benefits.
What problems are created with TOD? I am in the midst of deciding how to set things up for the future.

mptfan
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by mptfan » Tue Feb 04, 2020 3:18 pm

Old Sage(brush) wrote:
Sat Feb 01, 2020 8:49 am
If you’re in NY, significantly below the estate tax threshold, have only investment accounts in your estate all of which have TOD and IRAs with beneficiaries (no other assets), why would you need a trust? Seems to me you already have a simple way to avoid probate and settlement of the estate should be relatively easy. In such circumstances would you even need to go through probate or do anything more than follow the process for TOD accounts with investment firms?
I agree. Asking a trusts and estates lawyer whether you need a trust or a will is like asking a barber if you need a haircut.

Topic Author
VanGuppy
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by VanGuppy » Tue Feb 04, 2020 5:07 pm

bsteiner wrote:
Tue Feb 04, 2020 1:06 pm

Distributions means to beneficiaries. They get what's left after debts, taxes and expenses.

TOD assets pass outside the Will. They can create lots of problems so except in tiny estates we try to avoid them except for life insurance and retirement benefits.
Rephrase:

So everybody agrees TOD assets are not in the probate process. There are beneficiaries of those TOD assets that must be claimed by the individual from each asset. There are non-TOD assets covered by probate distributed to their beneficiaries through the executor. So are the TOD assets part of the estate for tax purposes, but separate from the estate for distribution purposes? Otherwise what is the point of having TOD accounts?

bsteiner
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by bsteiner » Tue Feb 04, 2020 5:25 pm

palanzo wrote:
Tue Feb 04, 2020 1:10 pm
...
What problems are created with TOD? I am in the midst of deciding how to set things up for the future.
If the beneficiaries don't cooperate in paying debts, expenses and taxes it could result in litigation.

You give up the opportunity to have them pass to your beneficiaries in trust rather than outright. If you provide for your beneficiaries in trust rather then outright, it will keep their inheritances out of their estates for estate tax purposes, and will protect their inheritances from their creditors and spouses, and Medicaid.

You run the risk that one asset goes up or down in value more than another, or that you withdraw non pro rata.
mptfan wrote:
Tue Feb 04, 2020 3:18 pm
... Asking a trusts and estates lawyer whether you need a trust or a will is like asking a barber if you need a haircut.
You're born with a Will (in the form of the state intestacy law). You only need a new one if you want it to say something different from the one you were born with.
VanGuppy wrote:
Tue Feb 04, 2020 5:07 pm
... what is the point of having TOD accounts?
For estates that are too small to warrant any procedures, where there's only one child (or a small number of children who are certain to cooperate), and where the risk of a beneficiary having a taxable estate or a creditor or spouse problem is small, and the risk that a beneficiary will want Medicaid is small.

It's also a way to provide for beneficiaries you don't want to mention in the Will. We had someone who was a public figure create a separate trust to receive a cash bequest that would be distributed among several female friends so that the bequests wouldn't be in his Will.

palanzo
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by palanzo » Tue Feb 04, 2020 5:54 pm

bsteiner wrote:
Tue Feb 04, 2020 5:25 pm
palanzo wrote:
Tue Feb 04, 2020 1:10 pm
...
What problems are created with TOD? I am in the midst of deciding how to set things up for the future.
If the beneficiaries don't cooperate in paying debts, expenses and taxes it could result in litigation.

You give up the opportunity to have them pass to your beneficiaries in trust rather than outright. If you provide for your beneficiaries in trust rather then outright, it will keep their inheritances out of their estates for estate tax purposes, and will protect their inheritances from their creditors and spouses, and Medicaid.

You run the risk that one asset goes up or down in value more than another, or that you withdraw non pro rata.
I am aware of the first and third issues.

Could you say a little more about the second please? Let's say that a Vanguard fund passes to a beneficiary through the trust. They will get a step up basis. How can the Vanguard fund be kept out of the beneficiary's estate for tax purposes? And how can their inheritance be protected from creditors and spouses?

I think I am misunderstanding what you said as I know you are an expert in this area.

mptfan
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by mptfan » Tue Feb 04, 2020 7:16 pm

bsteiner wrote:
Tue Feb 04, 2020 5:25 pm
mptfan wrote:
Tue Feb 04, 2020 3:18 pm
... Asking a trusts and estates lawyer whether you need a trust or a will is like asking a barber if you need a haircut.
You're born with a Will (in the form of the state intestacy law). You only need a new one if you want it to say something different from the one you were born with.
That's not a fair comparison because the law provides that I can pass assets to my beneficiaries via a TOD beneficiary and I am happy with that law. Whether you call that intestacy law or not.

bsteiner
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by bsteiner » Tue Feb 04, 2020 11:04 pm

palanzo wrote:
Tue Feb 04, 2020 5:54 pm
... Let's say that a Vanguard fund passes to a beneficiary through the trust. They will get a step up basis. How can the Vanguard fund be kept out of the beneficiary's estate for tax purposes? And how can their inheritance be protected from creditors and spouses?
...
If my Will says I leave my estate to Beneficiary outright, the assets become Beneficiary's, and will be included in Beneficiary's estate, and will be subject to Beneficiary's creditors and spouses, and Medicaid.

If my Will instead says I leave my estate in trust for Beneficiary, the assets are payable to the trustees of the trust for Beneficiary under my Will. Except to the extent the trustees make distributions to Beneficiary, the assets won't be included in Beneficiary's estate, and won't be subject to Beneficiary's creditors and spouses, or Medicaid.

Jablean
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by Jablean » Wed Feb 05, 2020 2:19 am

VanGuppy wrote:
Tue Feb 04, 2020 5:07 pm
bsteiner wrote:
Tue Feb 04, 2020 1:06 pm

Distributions means to beneficiaries. They get what's left after debts, taxes and expenses.

TOD assets pass outside the Will. They can create lots of problems so except in tiny estates we try to avoid them except for life insurance and retirement benefits.
Rephrase:

So everybody agrees TOD assets are not in the probate process. There are beneficiaries of those TOD assets that must be claimed by the individual from each asset. There are non-TOD assets covered by probate distributed to their beneficiaries through the executor. So are the TOD assets part of the estate for tax purposes, but separate from the estate for distribution purposes? Otherwise what is the point of having TOD accounts?
As an only child who was both the beneficiary of TOD assets and executor for my mom's much smaller estate here is what I did in a different state.

Made note of all accounts including TOD - transferred what was possible quickly - unfortunately the accounts were with a broker, multiple annuities companies, and also included a UTMA for my son that I had to change guardianship of the account for - getting them out and to Fidelity took a long time - they were safe where they were so I mostly ignored them till the rest of the estate was done. This broker also told me I needed way more death certs just for them than I really did.

Contacted Life Insurance - that money was easiest/fastest to collect and I used that money to pay bills for funeral etc that the estate later repaid me for as we couldn't find the will and didn't get approved by the probate court for two months because of holidays etc.

For items in the will which actually weren't coming to me (I got the $ someone else got the goods) I had to wait till I got my "letters" from the court giving me executor power, worked with the estate lawyer on when I could transfer items, kept my ledger of in/out money for expenses, last hospitalization etc. Decided on the last accounting total to present to the judge with request to close the estate.

As her executor I completed her last tax return with her tax guy which did not include any of the TOD assets except for any RMDs she had collected before death.

palanzo
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by palanzo » Wed Feb 05, 2020 11:26 am

bsteiner wrote:
Tue Feb 04, 2020 11:04 pm
palanzo wrote:
Tue Feb 04, 2020 5:54 pm
... Let's say that a Vanguard fund passes to a beneficiary through the trust. They will get a step up basis. How can the Vanguard fund be kept out of the beneficiary's estate for tax purposes? And how can their inheritance be protected from creditors and spouses?
...
If my Will says I leave my estate to Beneficiary outright, the assets become Beneficiary's, and will be included in Beneficiary's estate, and will be subject to Beneficiary's creditors and spouses, and Medicaid.

If my Will instead says I leave my estate in trust for Beneficiary, the assets are payable to the trustees of the trust for Beneficiary under my Will. Except to the extent the trustees make distributions to Beneficiary, the assets won't be included in Beneficiary's estate, and won't be subject to Beneficiary's creditors and spouses, or Medicaid.
Thank you for explaining. Can the beneficiary be a trustee? How would this work in practice? Would the beneficiary receive dividends and could the beneficiary sell or exchange shares in the Vanguard fund?

What kind of trust is this? I have to do some reading.

As far as a spouse is concerned I understood that an inheritance received after marriage is sole property and not community property. Is that correct?

bsteiner
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by bsteiner » Wed Feb 05, 2020 11:37 am

palanzo wrote:
Wed Feb 05, 2020 11:26 am
... Can the beneficiary be a trustee? How would this work in practice? Would the beneficiary receive dividends and could the beneficiary sell or exchange shares in the Vanguard fund?

What kind of trust is this? I have to do some reading.

As far as a spouse is concerned I understood that an inheritance received after marriage is sole property and not community property. Is that correct?
A beneficiary may be a trustee. A trustee who's a beneficiary may not make distributions to himself/herself except for health, maintenance, support or education. For any other distributions, a co-trustee would be needed. We require a co-trustee for all distributions. The beneficiary may have the power to remove and replace his/her co-trustee (provided the replacement trustee isn't a close relative or subordinate employee).

The trustees may invest the trust assets however they want (subject to the prudent investor rule which requires that they invest prudently given the particular facts and circumstances).

Assuming the trust so permits, the trustees may make whatever distributions they think best from time to time.

Inheritances aren't subject to equitable distribution on divorce in about 3/4 of the states, but they are in about 1/4 of the states. People often commingle their assets so it may be hard to trace the inheritance. Of course, if the inheritance is in trust, it's protected in all states, though the trust's income and assets may be taken into account in determining how much alimony or child support the beneficiary will receive or will have to pay.

Inheritances aren't community property states, though in some but not all of the community property states the income from separate property is community property. In other community property states the income from separate property is separate property. Of course, if the inheritance is in trust, this issue won't arise.

Topic Author
VanGuppy
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by VanGuppy » Wed Feb 05, 2020 12:39 pm

Jablean wrote:
Wed Feb 05, 2020 2:19 am

For items in the will which actually weren't coming to me (I got the $ someone else got the goods) I had to wait till I got my "letters" from the court giving me executor power, worked with the estate lawyer on when I could transfer items, kept my ledger of in/out money for expenses, last hospitalization etc. Decided on the last accounting total to present to the judge with request to close the estate.

As her executor I completed her last tax return with her tax guy which did not include any of the TOD assets except for any RMDs she had collected before death.
The OP's deceased has 2 tax returns to file, assuming no estate returns, 2019 (Year before death) and 2020 (Year of death). It seems executor only had a (Year of death) irs return to file and that 4-15 date was not involved, correct?

Jablean
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by Jablean » Fri Feb 07, 2020 12:43 am

VanGuppy wrote:
Wed Feb 05, 2020 12:39 pm
Jablean wrote:
Wed Feb 05, 2020 2:19 am

For items in the will which actually weren't coming to me (I got the $ someone else got the goods) I had to wait till I got my "letters" from the court giving me executor power, worked with the estate lawyer on when I could transfer items, kept my ledger of in/out money for expenses, last hospitalization etc. Decided on the last accounting total to present to the judge with request to close the estate.

As her executor I completed her last tax return with her tax guy which did not include any of the TOD assets except for any RMDs she had collected before death.
The OP's deceased has 2 tax returns to file, assuming no estate returns, 2019 (Year before death) and 2020 (Year of death). It seems executor only had a (Year of death) irs return to file and that 4-15 date was not involved, correct?
My mother passed in the fall so I only had to worry about the next year. It was close enough to the end of the year that RMDs were a pain and a half.

palanzo
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by palanzo » Tue Feb 11, 2020 12:06 pm

bsteiner wrote:
Wed Feb 05, 2020 11:37 am
palanzo wrote:
Wed Feb 05, 2020 11:26 am
... Can the beneficiary be a trustee? How would this work in practice? Would the beneficiary receive dividends and could the beneficiary sell or exchange shares in the Vanguard fund?

What kind of trust is this? I have to do some reading.

As far as a spouse is concerned I understood that an inheritance received after marriage is sole property and not community property. Is that correct?
A beneficiary may be a trustee. A trustee who's a beneficiary may not make distributions to himself/herself except for health, maintenance, support or education. For any other distributions, a co-trustee would be needed. We require a co-trustee for all distributions. The beneficiary may have the power to remove and replace his/her co-trustee (provided the replacement trustee isn't a close relative or subordinate employee).

The trustees may invest the trust assets however they want (subject to the prudent investor rule which requires that they invest prudently given the particular facts and circumstances).

Assuming the trust so permits, the trustees may make whatever distributions they think best from time to time.

Inheritances aren't subject to equitable distribution on divorce in about 3/4 of the states, but they are in about 1/4 of the states. People often commingle their assets so it may be hard to trace the inheritance. Of course, if the inheritance is in trust, it's protected in all states, though the trust's income and assets may be taken into account in determining how much alimony or child support the beneficiary will receive or will have to pay.

Inheritances aren't community property states, though in some but not all of the community property states the income from separate property is community property. In other community property states the income from separate property is separate property. Of course, if the inheritance is in trust, this issue won't arise.
Are you referring to a Discretionary Lifetime Trust? What would be the approximate annual cost of maintaining such a trust? What would happen to the trust and assets at the end of the beneficiary's life? In the case I am considering there is only one beneficiary. This would mean using a co-trustee at a trust company or something similar. Can the co-trustee veto the wishes of the adult beneficiary? If so what happens then?

In Equitable Distribution states my understanding is that separate property is always separate. Is that not the case? I do understand the difficulties of commingling assets and the need to keep the inherited assets separate and carefully documented.

Thank you for your contributions to the forum.

bsteiner
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by bsteiner » Tue Feb 11, 2020 1:03 pm

palanzo wrote:
Tue Feb 11, 2020 12:06 pm
...
Are you referring to a Discretionary Lifetime Trust? What would be the approximate annual cost of maintaining such a trust? What would happen to the trust and assets at the end of the beneficiary's life? In the case I am considering there is only one beneficiary. This would mean using a co-trustee at a trust company or something similar. Can the co-trustee veto the wishes of the adult beneficiary? If so what happens then?
...
Yes, a discretionary trust.

Upon the beneficiary's death, assuming the beneficiary had a broad power of appointment (which would usually be the case unless there's a reason not to give a beneficiary this power in a given case), the balance would go however the beneficiary appoints in his/her Will. If the beneficiary doesn't exercise the power of appointment, the balance would go in accordance with the default provisions of the original testator's Will, most likely in further trust for the beneficiary's issue.

The co-trustee could be any individual or bank or trust company. A bank or trust company will charge about 1% a year. Close family members would probably not take compensation.

There would also be some cost to preparing the annual income tax returns for the trust. However, assuming the trustees invest in a small number of mutual funds, these returns wouldn't be very complicated.

The trustees would have an equal vote on things other than distributions to the beneficiary. The beneficiary could have the power to remove and replace the co-trustee (provided the replacement trustee isn't a close relative or subordinate employee).

palanzo
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by palanzo » Tue Feb 11, 2020 1:33 pm

bsteiner wrote:
Tue Feb 11, 2020 1:03 pm
palanzo wrote:
Tue Feb 11, 2020 12:06 pm
...
Are you referring to a Discretionary Lifetime Trust? What would be the approximate annual cost of maintaining such a trust? What would happen to the trust and assets at the end of the beneficiary's life? In the case I am considering there is only one beneficiary. This would mean using a co-trustee at a trust company or something similar. Can the co-trustee veto the wishes of the adult beneficiary? If so what happens then?
...
Yes, a discretionary trust.

Upon the beneficiary's death, assuming the beneficiary had a broad power of appointment (which would usually be the case unless there's a reason not to give a beneficiary this power in a given case), the balance would go however the beneficiary appoints in his/her Will. If the beneficiary doesn't exercise the power of appointment, the balance would go in accordance with the default provisions of the original testator's Will, most likely in further trust for the beneficiary's issue.

The co-trustee could be any individual or bank or trust company. A bank or trust company will charge about 1% a year. Close family members would probably not take compensation.

There would also be some cost to preparing the annual income tax returns for the trust. However, assuming the trustees invest in a small number of mutual funds, these returns wouldn't be very complicated.

The trustees would have an equal vote on things other than distributions to the beneficiary. The beneficiary could have the power to remove and replace the co-trustee (provided the replacement trustee isn't a close relative or subordinate employee).
Thank you. This is vert helpful.

On the matter of distributions to the beneficiary would the trustees have an equal vote or would the beneficiary make the those decisions?

bsteiner
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by bsteiner » Tue Feb 11, 2020 1:56 pm

A trustee who is a beneficiary may not participate in discretionary distributions to himself/herself.

There’s an exception. You could permit the trustee/beneficiary to participate in (or even act alone) as to distributions for health, maintenance, support and education. Some people allow this, though we don’t.

palanzo
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by palanzo » Tue Feb 11, 2020 2:31 pm

bsteiner wrote:
Tue Feb 11, 2020 1:56 pm
A trustee who is a beneficiary may not participate in discretionary distributions to himself/herself.

There’s an exception. You could permit the trustee/beneficiary to participate in (or even act alone) as to distributions for health, maintenance, support and education. Some people allow this, though we don’t.
So, for example, if the beneficiary wanted to pay off his or her mortgage they could not make that decision and would be dependent on the other trustee allowing this distribution. Is that correct?

It seems the trust does not allow the beneficiary to enjoy his or her inheritance. I understand why one would want to do this for a minor child or a young adult, and I do see the benefits of protecting the assets from a divorce or creditors but it seems to be very limiting for an adult beneficiary.

Is this kind of trust utilized frequently or are wills, revocable living trusts and TOD accounts more often used for estates that are not valued in the 10s of millions?

mptfan
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by mptfan » Tue Feb 11, 2020 2:34 pm

bsteiner wrote:
Tue Feb 11, 2020 1:56 pm
There’s an exception. You could permit the trustee/beneficiary to participate in (or even act alone) as to distributions for health, maintenance, support and education.
It seems that there can be wide variations in how different people define expenditures for "health, maintenance, support and education."

bsteiner
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by bsteiner » Tue Feb 11, 2020 11:12 pm

palanzo wrote:
Tue Feb 11, 2020 2:31 pm
bsteiner wrote:
Tue Feb 11, 2020 1:56 pm
A trustee who is a beneficiary may not participate in discretionary distributions to himself/herself.

There’s an exception. You could permit the trustee/beneficiary to participate in (or even act alone) as to distributions for health, maintenance, support and education. Some people allow this, though we don’t.
So, for example, if the beneficiary wanted to pay off his or her mortgage they could not make that decision and would be dependent on the other trustee allowing this distribution. Is that correct?

It seems the trust does not allow the beneficiary to enjoy his or her inheritance. I understand why one would want to do this for a minor child or a young adult, and I do see the benefits of protecting the assets from a divorce or creditors but it seems to be very limiting for an adult beneficiary.

Is this kind of trust utilized frequently or are wills, revocable living trusts and TOD accounts more often used for estates that are not valued in the 10s of millions?
Paying off a mortgage loan might fall within maintenace.

If the beneficiary has the power to remove and replace his/her co-trustee (provided the replacement trustee is not related or subordinate), then the beneficiary has effective control.

These trusts are usually contained in Wills, but can also be included in trust instruments, either revocable or irrevocable.
mptfan wrote:
Tue Feb 11, 2020 2:34 pm
bsteiner wrote:
Tue Feb 11, 2020 1:56 pm
There’s an exception. You could permit the trustee/beneficiary to participate in (or even act alone) as to distributions for health, maintenance, support and education.
It seems that there can be wide variations in how different people define expenditures for "health, maintenance, support and education."
That's why we generally don't treat distributions for these things differently from distributions for other things. They're considered ascertainable in the sense that if a dispute arises, a court can determine the appropriate amount, whereas in a fully discretionary trust the court can't determine the appropriate amount.

Topic Author
VanGuppy
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Re: Recent passed parent had Vanguard TOD and will. What now?

Post by VanGuppy » Thu Feb 13, 2020 5:37 pm

Thank you everybody for all the posts. They have been enlightening. Well, the only asset I transferred so far was the joint bank account into only my name. I retained a lawyer after discussing the non-probate assets and the unknown probate bills. She mentioned not even filing probate and paying the bills from the TOD accounts or filing a Simple Probate (Voluntary Administration). I told her I might need legal advice transferring the TOD assets and anything dealing with probate. She came back with a retainer agreement for the administration of the ESTATE of my parent. It was to ASSIST me with getting Certificates of Voluntary Administration to the Surrogate court and among other things :

Supervise payment of outstanding debt and bills.
Supervise any intermediate or final distributions of property to heirs and legatees.

I assume this means to assist me supervise correct?

A role for me was to give all financial papers.

They had me sign a notarized authorization for release that they didn't not give me a copy till after leaving. That allowed release of all financial records "including beneficiary records of the ESTATE of the deceased OR myself".

Reading this later it's the ESTATE. Best I can tell from these posts that would include only the Probate accounts. Right? And I'm now wondering why I authorized then to access ALL of MY financial records and accounts. Why do they need non-probate and MY personal financial account info? I know I should have asked then, but before I do later, was wondering what posters here thought.

I thought I was trying to put separation between probate and TOD account claims. Did I bring them closer together?

EDIT: New question.

Closer read it's for me in a personal capacity or Administrator of Estate. New question will has a first (me) and replacement executor. In NY how would this lawyer ever be assigned as Estate Administrator even if both of us turned role down? I still do not know why hen needs ALL of my personal financial records

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