New York Probate Lawyer Blog

December 4, 2025

A Guardian May Make Gifts of a Ward’s Property

When the term Guardianship is referred to, a general perception is that someone is appointed to take charge of the affairs of an individual who is incapable of handling his own matters. While this general perception is accurate, it does not really identify the existing Guardianship laws and procedures which exist in New York. Guardianship law in New York can be very complicated and perplexing. The New York Probate Lawyer Blog has published many articles discussing Guardianship issues.

There are two statutes which provide a framework for the Guardianship appointment. Article 81 of the Mental Hygiene Law sets out the manner by which a Guardian can be appointed for an adult. The foundation of this law is the determination of incapacity. Incapacity is demonstrated by a review of someone’s functionality and their ability to handle their activities of daily living. A finding of incapacity requires that the alleged incapacitated person cannot take care of their personal needs and/or property management and does not appreciate their disability and as a result would suffer harm if no Guardian is appointed.

Although Article 81 provides a Court appointed Guardian with many possible powers, a key aspect of this law is that the Court is provided with great discretion to adjust and limit Guardianship powers to meet the requirements of the situation. The overriding sentiment is that the Court should impose the least restrictive means to accomplish the needs of a person and afford them the greatest liberty possible.

November 20, 2025

Real Estate In Estate Settlement – Mortgages and Other Liens Can Cause Problems

by Jules M. Haas

The assets which may be owned by a Decedent can take many forms. There may be financial items such as bank accounts or brokerage accounts. These can be pure savings held in a Decedent’s name or retirement savings in the form of Individual Retirement Accounts, a 401K or other pension type plan. Sometimes there is life insurance. However, it must be remembered that only assets held in a Decedent’s name alone will be in an estate. If there are named beneficiaries or joint survivorship owners, such assets will be paid directly to the beneficiary or survivor without passing through an estate. The New York Probate Lawyer Blog has published many articles discussing estate settlement.

Estate assets will come under the control of either an Administrator or Executor depending upon whether or not a Decedent died leaving a Last Will and Testament. In either case, one of the most valuable assets owned by a Decedent is real estate. Real property can be in the form of a personal residence or commercial property. A condominium unit is real property. A cooperative apartment is not real property since the ownership is the shares of stock in the cooperative corporation. However, in many ways co-ops appear to be real estate.

It is not uncommon for a real estate asset to be encumbered by a mortgage. Mortgages can take many forms. There can be the typical home loan. Also, there may be a Reverse Mortgage or a Home Equity Line of Credit. In all these situations an Executor or Administrator is faced with the task of paying or satisfying these loans during the course of estate administration. Payment of ongoing or monthly charges may be difficult or impossible if an estate does not have any liquid funds. If the property is difficult to sell or if other circumstances interfere with its sale, a lender may seek to foreclosure. Circumstances such as tenants or occupants refusing to give up possession or a delay in obtaining Court authorization for a fiduciary to act may cause complications. Dealing with a foreclosure where a lender is seeking to obtain a judgment and sale can result in a lot of stress on a fiduciary who wants to protect a valuable asset.

November 7, 2025

The Nexus Between Article 81 Guardianship and Estate Litigation In New York

by Jules M. Haas

Time and again situations arise where the circumstances and proceedings concerning an Article 81 Guardianship and estate litigation in the Surrogate’s Court intersect. The New York Probate Lawyer Blog has published many articles concerning the topics of Guardianship and litigation in estates. At the core of any Article 81 Guardianship proceeding is the need to determine by clear and convincing evidence whether a person is incapacitated.

Incapacity is a determination that someone, due to some disability or condition, is incapable of handling their personal needs or property management and cannot appreciate that their diminished capacity is interfering with their functionality. Unless a Guardian is appointed, such person would suffer harm. These issues involve decisions or actions an alleged incapacitated person may have made and, sometimes, whether the person was subjected to undue influence or manipulation which took advantage of a lack of capacity. Article 81 cases often involve assertions by interested parties such as family or friends allege wrongdoers have converted an AIP’s assets for their own benefit or abused advance directives such as a Power of Attorney.

Once a person dies, it is very common that accusations of improper conduct, which were raised in a Guardianship case, transfer over or re-emerge in estate litigation. Various matters relating to undue influence or testamentary capacity may be asserted in a Will Contest. Also, these concerns may be relevant with regard to pre-death transfers of assets by a decedent when it was asserted in a Guardianship case that there was manipulation or fraud. Information disclosed or determinations made by a Court in a Guardianship case may be referenced to support assertions in an estate litigation proceeding. It may be that in the estate case, conduct by certain individuals which was exposed in the Guardianship proceeding may be referred to challenge a person’s viability to be appointed as an Executor, Administrator or Trustee. In a Guardianship case the Court typically appoints a Court Evaluator who does an extensive review of the factual basis for the appointment of a Guardian and who provides certain recommendations to the Court. The Report of a Court Evaluator may contain important information which is relevant in the estate proceedings.

October 24, 2025

Intestate Administration In New York May Involve A Public Administrator

by Jules M. Haas

When a person dies without a Last Will and Testament he is deemed to have died intestate. In these cases, there are specific New York estate statutes and procedures which are applicable. The New York Probate Lawyer Blog has published many articles concerning intestate estates as well as topics such as probate, accountings, Surrogate’s Court and Article 81 Guardianships.

The primary statute which is to be looked at is Estates, Powers and Trusts Law Section 4-1.1 which is entitled “Descent and distribution of a decedent’s estate”. This statute which this Blog has discussed many times, provides the priority of a decedent’s next of kin to inherit the estate. For example, a spouse and children have priority before parents and siblings. The statute sets forth the priority all the way to more distant relatives such as cousins. Thus, in estates where there is no Last Will, the identities of distributees is a paramount issue. There are many cases where a person’s heirs are either unknown or cannot be located. There may be a need to hire a genealogist or investigator to obtain this information. When a decedent’s family tree is unclear or the closest relatives are distant, the Surrogate’s Court may require a Kinship Hearing to resolve these issues. Proof of kinship may be very difficult since birth, death, marriage and other records and information may be hard to locate particularly in foreign or out of state places.

Another very important statute is Surrogate’s Court Procedure Act Section 1001 which is entitled “Order of priority for granting letters of administration”. This statute provides for the persons who have the priority right to be appointed as the Administrator of the estate. When there is a Last Will, the document sets forth the named Executor so this statute is generally not applicable in probate.

October 17, 2025

Estate and Trust Litigation-There is No Joy In Margaritaville

by Jules M. Haas

The settling of a decedent’s estate in New York may be relatively straight forward or frought with problems. As has been discussed in the many articles appearing in the New York Probate Lawyer Blog, the initial steps after a decedent’s death concern whether there was Last Will and Testament to be probated or, if none, then commencing an intestate administration proceeding. Whether the avenue is probate or intestacy there may be innumerable problems to be faced at the outset.

Where a Will is probated, a decedent’s heirs may decide to Contest a Will. A Will contest can embroil an estate in Surrogate’s Court litigation for years. Allegations regarding undue influence or lack of testamentary capacity may not be easily determined particularly where a decedent was subject to illnesses or circumstances tending to create vulnerability at the time a Will was signed.

Similarly, intestate administration may be complicated by issues concerning the authentication of a decedent’s heirs or distributees. Persons may claim to be a spouse or child whose credentials may be suspect. Also, long lost relatives, particularly distant heirs such as cousins, may be difficult to ascertain or locate.

October 3, 2025

New York Guardianship Cases – Some Procedural Guidance

by Jules M. Haas

There are many situations where it appears that a Guardian under Article 81 of the Mental Hygiene Law should be appointed. This statute provides for the appointment of a Guardian for Personal Needs and also for Property Management. The essence of these cases is a determination by the Court that the Alleged Incapacitated Person (AIP) is incapacitated. In this regard incapacity is not a medical diagnosis but is really a functional analysis as to a person’s ability to handle activities of daily living. Where someone cannot handle their personal needs or financial matters due to some type of illness or disability and the person fails to appreciate their malady and is at risk of harm, then a Court upon clear and convincing evidence may appoint a Guardian. While Article 81 provides a list of powers to be exercised by a Guardian, the Court can provide the precise powers which may apply in any particular situation.

A Guardianship case is commenced by the filing of a Petition and a proposed Order to Show Cause in the County where the AIP is located. The Petition will provide all of the information regarding the AIP’s situation, the need for a Guardian and information about the Petitioner. Anyone interested in the welfare of an AIP may file a Petition. The New York Probate Lawyer Blog has published many articles regarding issues concerning Guardianship in New York.

As noted, there are many situations where a Guardianship is needed. A person may suffer a severe illness or accident or may be experiencing difficulties due to cognitive matters such as dementia. I have seen many cases where relatively young individuals are suffering from the onset of mental disorders such as schizophrenia.

September 22, 2025

Real Property In A New York Estate Can Present Challenges To an Executor or Administrator

by Jules M. Haas

As a New York Trusts and Estates and Real Estate Attorney for more than 40 years, I have come across many instances where fiduciaries must administer real estate. When a person dies one of the most valuable assets which may be part of an estate is real estate. This type of asset may be in the form of a decedent’s residence or commercial or business property. Additionally, real estate may include real property in the form of a house or a condominium. While cooperative apartments are technically not real estate since the ownership is a shareholder interest in the cooperative corporation, many of the same problems are associated with all similar types of real property interests.

The initial concern for an Executor or Administrator is to appreciate the type of appointment they have received. An Executor or Preliminary Executor is going to be acting pursuant to a Last Will and Testament. may provide specific provisions as to whom the real estate is to be given. Similarly, the document may provide that the property is to be sold and the net proceeds distributed to a number of beneficiaries. Where there is a specific devise of real estate a fiduciary’s authority to dispose of such asset may be limited.

In situations where a decedent dies intestate without a Will, the decedent’s distributees would be the beneficiaries of the property. In these cases, there may be complications since technically the distributees become owners of real property upon death. However, an estate may be subject to claims, expenses and debts which may require an Administrator to take control over the property to satisfy these items.

September 12, 2025

The Many Reasons A Decedent’s Estate Needs to Be Settled

by Jules M. Haas

When an individual dies, one of the first orders of business is to determine whether the decedent’s estate requires a formal settlement. In this regard, a full understanding of a decedent’s assets and affairs is imperative. The New York Probate Lawyer Blog has published many articles discussing the difference between assets which are subject to distribution by operation of law and those which require the formal appointment of an estate fiduciary such as an executor or administrator.

In essence, in the event a person owned assets such as bank or financial accounts, real estate or other similar items in his name alone, then an estate fiduciary is necessary to access and collect these items. If a decedent had prepared a Last Will and Testament, then the Will must be probated in the appropriate Surrogate’s Court. Typically, the person named as Executor in the Will initiates the probate process. When a Will is admitted to probate, the Executor receives Letters Testamentary which show his official authority to act on behalf of the estate.

In situations where there is no Will, Letters of Administration can be applied for from the Surrogate’s Court by individual next of kin who have priority under the estate laws to be appointed as Administrator. The persons who are entitled to receive a share of an estate are also the next of kin who have statutory priority.

August 28, 2025

New York Probate of A Lost Will -A Common Problem

by Jules M. Haas

Upon the death of a person, an initial determination needs to be made as to whether there exists a Last Will and Testament. The presence of a Will has great significance. This estate planning document typically contains written provisions concerning the manner in which a person’s probate estate is to be distributed. A Will may have directions providing for specific gifts to named persons or institutions or there may be dispositions to a group of beneficiaries based upon percentages or shares. In addition, there is usually a provision designating the executors, and sometimes trustees if a Will establishes a testamentary trust.

In the event a Will does not exist, the disposition of a New York estate is made to a decedent’s next of kin according to the priority established in Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate.” The New York Probate Lawyer Blog has published many articles regarding estate settlement.

Where a person creates a Will, it is essential that the original paper be obtained to be filed with the Surrogate’s Court. The probate process requires that the original Will bearing the original signature of the testator and the attesting witnesses be produced. A common problem which occurs is that a copy of a decedent’s Will is found but not the original. Nowadays, very often after a Will is executed the original is kept by the testator. Where a Will is signed many years before death, locating the original among a decedent’s personal affects may be troublesome, especially if a decedent had moved residences over time and had not provided a secure location for the document.

August 14, 2025

The Removal of A New York Executor, Administrator or Trustee- A General Outline

by Jules M. Haas

The appointment of a fiduciary in New York can take many forms. When a person dies and leaves a Last Will and Testament the document typically designates the appointment of an Executor. After a Will is admitted to probate, Letters Testamentary are issued to the Executor. If a decedent does not have a Will and dies intestate, then an Administrator is appointed after the conclusion of proceedings for Letters of Administration. As to trustees, there are different types of trustees. A testamentary trustee is appointed to oversee a trust which is created in a Will. A trustee of an inter vivos trust is responsible for a trust created outside of a Will such as a revocable or living trust.

In all instances, fiduciaries such as Trustees, Executors and Administrators must act properly and uphold their fiduciary duties. They have certain powers and authority which is granted by the document and also by New York estate and trust statutes. Estates, Powers and Trusts Law section 11-1.1 entitled “Fiduciaries’ powers” provides many of the powers which can be executed. Fiduciaries generally owe various duties which prevent conduct such as self-dealing or using funds for personal reasons. When a fiduciary acts improperly they can be found to have breached their fiduciary duty. Such a breach can result in a fiduciary being suspended or removed and also personally liable for any transgression.

One of the primary statutory provisions concerning misconduct by an Administrator, Trustee or Executor is Surrogate’s Court Procedure Act section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct”. This statute lists 11 categories of conduct or situations in which suspension or revocation may occur. Typically, a person interested in an estate or trust would file a petition with the Court seeking the appropriate relief. The petition should be as specific as possible when describing the conduct or reasons whereby the Court should take appropriate action.