When a person dies without a Last Will he is deemed to have died intestate. New York Surrogate’s Court Procedure Act (“SCPA”) Section 103(28) defines “Intestate” as “A person who dies without leaving a valid will.”

The New York Probate Lawyer Blog has published many posts regarding the administration of estates where there is no Will. In these cases the decedent’s distributees (next of kin) have the right to file a petition with the Surrogate’s Court and ask to be appointed as the Estate Administrator. Continue reading

It is very common that a decedent is a tenant in a New York City Rent Stabilized or Rent Controlled apartment. The rules regarding such rent regulated housing are very complex and concern matters such as the amount of rent that can be charged and other landlord-tenant issues.

One of the aspects of rent regulated housing is that certain family members and other persons who had been living together with the decedent in a family relationship, are entitled to succession rights to the apartment. In other words, these survivors have the right to take over and become the new tenant under the lease in the place and stead of the decedent. Continue reading

New York Estate Lawyers know that it is important for individuals to create plans that reflect their intentions. An estate plan can include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust.

It is important that when creating these documents, an individual give serious consideration to the provisions that are made in each instrument. For example, when preparing a Power of Attorney, a person should be careful to designate an agent that is trustworthy and that the agent be given powers that are necessary and restricted as the situation or circumstance may require. It may not always be the best course just to fill out the standard Power of Attorney form with all of the powers provided and sign it without regard to the possible consequences of such act. Continue reading

Executors and Administrators in New York have many different duties and fiduciary obligations.  The New York Probate Lawyer Blog has discussed the importance of a fiduciary acting properly and protecting estate assets.

A source of controversy in estate administration often involves the ownership and management of real estate. Typically, a decedent’s home and other real estate holdings constitute the most valuable asset in an estate. Sometimes, a relative of the decedent or friend may have been living with the decedent for many years prior to the decedent’s death. Once a fiduciary is appointed to handle estate matters, the executor or administrator will need to take control over the real estate. This may result in the need to evict the persons who had been living with the decedent. The fiduciary must be able to protect the real estate and control it since there is a fiduciary obligation to safeguard estate property. As can be imagined, the long-time occupant of the property may oppose or interfere with the fiduciary’s activities and claim that they have a right to continue to occupy or even own the home. In these cases the fiduciary needs to commence Surrogate’s Court proceedings or Landlord-Tenant eviction proceedings to obtain control over the real estate. In some cases the Court may issue an injunction and stop the occupant from interfering with the executor or administrator or otherwise causing harm to the property. Continue reading

Article 81 of the New York Mental Hygiene Law contains the provisions regarding the appointment of a Guardian. As discussed in earlier posts in the New York Probate Lawyer Blog, when a person is found to be incapacitated the Court can appoint a Guardian for personal needs and also for property management.

A Guardianship case is commenced by the petitioner who files a proposed Order to Show Cause and a Verified Petition with the Court. Upon receipt of these papers, the Court will review the allegations to determine whether it will sign the Order. Continue reading

A Supplemental Needs Trust (“SNT”) is a trust that is typically created to provide a protected fund for persons who receive benefits from governmental sources. Ordinarily, if an individual is the recipient of benefits from Medicaid or social security disability or other governmental programs, the receipt of private funds by such individual would disqualify them from obtaining future benefits. The private monies would either need to be paid to the government as repayment for past benefits or spent down before government subsidies could resume. The SNT allows a person to have the best of both worlds. Funds can be held in a SNT while the government benefits continue to be paid.

A SNT can be created and utilized in many different situations.  For example, in estate planning, where a parent has a child or potential beneficiary that is a recipient of benefits such as Medicaid, a SNT can be established as a provision in a Last Will or Living Trust to provide a source of extra financial benefit for such person without risking any loss of benefits.  New York Estates, Powers and Trusts Law Section 7-1.12 entitled “Supplemental needs trusts established for persons with severe and chronic or persistent disabilities” provides the requirements for the creation of such trusts. Continue reading

There are many types of proceedings that occur relating to a decedent’s estate. One of the most common matters involves the probate of a Last Will and Testament. New York estate lawyers are familiar with the manner in which a Will is presented to the Surrogate’s Court. In the typical case, the original of the Will is filed with the Court along with a death certificate, a petition and other papers. Having a Will admitted to probate simply means that the Will is validated by the Court and its provisions regarding asset distribution and other directions must be followed. At the time probate occurs the Court appoints an estate fiduciary who is typically the Executor nominated in the Will. The New York Probate Lawyer Blog has posted many articles explaining the probate of an estate.

In some situations the probate process turns into a Will Contest. When the situation concerns a contested Will, the typical occurrence is that one or more of the decedent’s next of kin (“distributees”) disputes the validity of the Will. This dispute can be based upon the grounds of undue influence, lack of testamentary capacity or improper execution of the Will. Continue reading

The estate of a decedent can be affected by many different pre-death and post death events. For example, the decedent may be involved in a lawsuit during life that is still ongoing at the time of death. It will then be up to the estate Executor or Administrator to take over the lawsuit to its conclusion. Depending upon the nature of the case, the lawsuit may result either in a liability to the estate or an asset if the estate recovers money.

New York Probate Attorneys are familiar with many other situations that can impact estate settlement. One such situation involves the marital status of the decedent at the time of death. Under the New York estate laws, a spouse of the decedent has certain rights. If a married person dies without a Last Will, Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1 provides that the surviving spouse would inherit a share of the decedent’s estate. Also, it is not uncommon that a spouse is named as a primary beneficiary in a decedent’s Last Will and Testament. However, even where a spouse is not named in a Will, EPTL Section 5-1.1-A, entitled “Right of election by surviving spouse”, provides the survivor with the right to receive the greater of $50,000.00 or one-third (1/3) of a decedent’s net estate. Continue reading

Article 81 of the Mental Hygiene Law (“MHL”) is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. The New York Probate Lawyer Blog has posted many discussions regarding the process of having a Guardian appointed for an incapacitated person.

The statute provides that the Court may only appoint a Guardian after the Court has conducted a hearing (MHL §81.11). At the hearing, the parties can “present evidence” “call witnesses”, “cross examine witnesses” and be represented by an attorney. Also, the statute requires that the Court hearing take place in the presence of the person who is alleged to be incapacitated. The most essential element in the Guardianship case is typically whether a person is incapacitated. Incapacity is defined in MHL § 81.02 which sets out the basic criteria for a Guardianship appointment. Continue reading

The estate of a New York decedent contains many different types of assets. One of the most important items of ownership in an estate is real estate. These interests commonly constitute one of the estate’s most valuable assets. Since real estate holdings are so valuable and because the laws concerning real estate interests can be complex, estate executors and administrators can be engulfed by the need to resolve property issues during estate administration.

The New York Probate Lawyer Blog has had many posts discussing real estate issues that have arisen during the course of estate proceedings. One very common example of these issues occurs when the decedent dies and his residential home is also occupied by other family members. While the other family members have no title interest in the property, they often do not want to vacate the home where they lived with the decedent for many years. In these cases the estate fiduciary needs to have the family members move so that the property can be sold and the proceeds distributed to estate beneficiaries. When these differing interests collide, the result is that estate litigation in the Housing Court or Surrogate’s Court is needed to resolve the dispute. Continue reading

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