New York Probate Lawyer Blog

The preparation of a New York Last Will is an important part of a person's overall financial plan. The initial step that should be taken is to fully assess and understand the goals that the person making the Will wants to achieve. This process can be summarized as formulating and clearly expressing the intentions that are to be spelled out in the Will provisions. For example, who are the persons that are to benefit from the Will provisions and in what manner or proportion are they to receive these benefits. Beneficiaries can vary from spouses and children to more distant relatives, friends and charities.

It is important at this juncture to keep the estate plan simple. The New York Probate Lawyer Blog recently discussed aspects of the Federal estate tax law such as "portability" of the marital deduction between spouses. While estate planning is essential, it is more important at the outset to develop the basic plan or intent regarding the individuals or organizations that the testator (the person to whom the Will belongs) wishes to benefit. The tax planning and Will structure can then be developed so as to promote or carry-out the basic intent. A Last Will that has complicated tax provisions and trusts may be a great legal document but it is not useful unless it gets the assets to pass to the intended beneficiaries in a clear and efficient manner. Simplicity has its virtues.

The recent death of pop-star Whitney Houston provides an example of a simple yet effective Last Will. It was recently reported by MTV in an article by Gil Kaufman dated March 8, 2012, that Whitney Houston's Will was written in 1993. In the Will, Ms. Houston's entire estate was left to her only child, her 19 year old daughter, Bobbi Kristina Brown. It seems that the Will provided for a Trust under which Bobbi is to receive some of the assets at age 21, then some at age 25 and the balance at age 30. Ms. Houston's mother is named as Executor and her brother and sister-in-law are named as Trustees.

This type of plan is typical for persons with young children and provides a straight forward map for the Trustees to make periodic payments to a young person over time as they get aclamated to handling and being responsible for large sums of money following the death of a parent. I have drafted many Wills for clients which contained similar Testamentary Trusts.

Part of the process in planning is to consider an appropriate payment period since the ages at which Trust Funds can be paid to the Trust Beneficiary are completely within the discretion of the Testator to determine in the Will provisions. Trustees should also be given discretion to make additional payments to beneficiaries which allows the trust to have more flexibility and accommodate unforeseen events.

Last Wills, Health Care Proxies, Living Wills, Living Trusts and Testamentary Trusts all have provisions that express the intent of the creator of these documents. Formulating and then expressing one's intentions is the first, and perhaps most important, step in creating an effective estate plan.

The extent to which a testator's intentions can be measured has recently been the subject of a major estate litigation occurring in Massachusetts. As reported in the Portland Press Herald on February 25, 2012, a Massachusetts Merchant left a Will 351 years ago that provided for the nation's oldest charitable trust in Ipswhich, Massachusetts to fund the local public schools. Recently, the trustees have attempted to forego the Will provisions and convert the local trust property comprised of cottages into condominiums. As reported in the article, the current residents have opposed this plan "saying it violates the sacred intent of Payne's Will. . . ." As shown by this controversy, even after 351 years, a testator's intent is still the foundation for the administration of the decedent's estate.

Continue reading "New York Last Wills Should Express The Testator's Intent" »

The administration of a New York estate requires that estate fiduciaries, such as Executors and Administrators, determine and resolve debts that are left by a decedent.

Debts and liabilities can take many forms. A decedent may have owned a home or other real estate. Such assets can have mortgage debts as well as judgments or other unpaid monetary liens such as municipal environmental control board violations, building code penalties, mechanics liens and property tax assessments. The estate fiduciary is obligated to discover all of these liabilities, determine the amount that may be validly due and then formulate the best manner in which to satisfy the outstanding balances. It is very common for the decedents' real estate to be sold and the sales proceeds used to pay off the liabilities that relate to the real estate such as the mortgage. However, the sale of the real estate may take many months or years depending upon the marketplace. Meanwhile, mortgage payments and taxes can continue to come due and accumulate. Foreclosure may be a real threat to preserving the value of the estate's property. These are all problems and issues that an estate fiduciary must solve as part of his or her fiduciary duty.

Estate liabilities may also be in the form of business obligations such as leases, credit card bills, medical bills and pending lawsuits. Manhattan probate attorneys as well as estate attorneys throughout New York regularly advise and help their clients who are Executors and Administrators as to the manner in which to protect the decedent's estate in these types of situations.

I have represented many individuals where it was necessary to uncover and investigate the validity of liabilities that could be costly to an estate. Working closely with clients, these issues are reviewed and resolved to protect the interests of the estate beneficiaries and satisfy the obligations of the fiduciary.

It should be recognized that the decedent's obligations are generally only enforceable against the decedent's estate. Estate beneficiaries are usually not liable for any of the decedent's debts and the estate fiduciaries, such as Executors, are only liable for these debts as representatives of the estate. There is usually no personal liability on the part of the Executor or Administrator for a decedent's debts. Moreover, a creditor cannot bring a lawsuit against the decedent's estate until a fiduciary is appointed by the Court. In a recent case entitled Rotwein v. Murray, decided on February 15, 2012 by Judge Michael A. Ciaffa of the Nassau County District Court, and reported in the New York Law Journal on February 28, 2012, the Court dismissed a lawsuit by a doctor for medical services performed for a decedent prior to death. The doctor had sued the decedent's wife as "Executor" of the estate. However, since the doctor failed to provide the Court with any proof that the wife, or anyone else had in fact been appointed as Executor, the lawsuit was dismissed. Rotwein shows that without the actual appointment of an estate fiduciary, there is no one who is authorized to represent the decedent's estate that can be subjected to a lawsuit.

Continue reading "New York Estate Settlement Requires the Payment of the Decedent's Debts" »

New York estates are subject to many requirements relating to taxes. Estate taxes can have a major impact on the estate administration process since the estate fiduciary such as the Executor or Administrator is responsible for timely preparing the estate tax returns and paying the tax that may be due. New York decedent's estates may be subject to both New York State and Federal Estate Tax.

The New York Probate Lawyer Blog has previously discussed revisions that were made to the Federal Estate Tax at the end of 2010. These new rules terminate at the end of 2012 unless extended or modified. Beginning in 2011 the basic amount of exclusion from the Federal Estate Tax was increased to $5,000,000 per individual. Under the new law, to the extent that the exclusion amount was not used for a deceased spouse, the unused amount could be transferred to the surviving spouse to be used to offset his or her estate tax. This transfer, called Portability, could conceivably allow the second to die spouse to have an exclusion of 10 million dollars.

In order to qualify for Portability, the Executor or Administrator of the first spouse to die must make an election on a timely filed Federal Estate Tax Return. A Federal Estate Tax Return is due to be filed within 9 months after death and a 6 month automatic extension can be applied for. The IRS recently issued a notice which provides additional time for filing the estate tax return for decedent's who died during the first six months of 2011. See article by Michael Cohn dated February 17, 2012, "IRS Extends Deadline on Estate Tax Portability Election." This extension of time would allow for the election of the portability option.

Fiduciary duties in settling an estate can be very extensive and complicated. Advise from probate attorneys and tax professionals is essential for an estate to be handled properly and efficiently. Estate assets need to be identified, valued and collected and bills, debts and other expenses paid. All of the estate financial information needs to be retained and organized so that it can be reported in the Estate tax return and accounting papers. Failure by a fiduciary to properly handle these financial and estate tax matters can result in damage to an estate and a breach of fiduciary duty for which a fiduciary may incur personal liability.

I have represented many fiduciaries over the years and assisted them with the numerous estate settlement tasks and tax reporting duties that they are responsible for completing. The welfare and interests of the estate beneficiaries are of utmost importance and it is essential to protect these interests by effectively processing the estate finances.

Continue reading "Estate Tax Rules Impact Estates of New York Decedents" »

The New York Probate Lawyer Blog has discussed different areas concerning estates of decedents such as Last Wills, Kinship, Probate and Administration, as well as Article 81 Guardianships. In many instances there is a combination of issues and problems that estate beneficiaries and fiduciaries face before estate settlement can be finalized. A recent case entitled Estate of Veronica Tesler, decided by Kings County Surrogate, Diana A. Johnson on January 11, 2012 and reported in the New York Law Journal on February 6, 2012, provides a typical example of estate administration that faced many problems.

In Tesler, the decedent, Veronica Tesler, had been determined to be incapacitated prior to her death. As such, the Court had appointed Guardians for her person and property. Also, prior to her death, Veronica had signed a Last Will in which she left her estate to her nephew and appointed him executor.

While Veronica's preparation of a Last Will was sound estate planning, the nephew predeceased Veronica. Apparently, Veronica did not provide for any alternate disposition of her property. The result was that she effectively died intestate (i.e. without a Will), because there was no provision in her Will for an alternate beneficiary. Tesler demonstrates that it is always best to provide for alternate beneficiaries in a Last Will as well as alternate Executors. The Brookyn Probate of Veronica's Will was thwarted by this apparent oversight.

Since Veronica died intestate her estate beneficiaries needed to be determined by the intestacy statutes of New York. Here, Veronica's maternal cousins filed a petition with the Court to obtain Letters of Administration. However, since the maternal cousins could not provide information regarding Veronica's paternal next of kin ("distributees"), the Court appointed the Public Administrator to handle the estate affairs. The Public Administrator is a public official whose function is to administer estates in various circumstances such as where no family member or no family member of close enough kinship in the case of intestacy is available.

After the Public Administrator completed the administration of Veronica's estate such as collecting assets and paying bills and debts, the Public Administrator filed an accounting with the Surrogate's Court. It was at this time that the maternal cousins were required to demonstrate at a Kinship Hearing that they were Veronica's sole distributees and entitled to receive her entire estate.

Kinship cousin cases can be very complex and require proof in the form of documents such as birth records, death records, marriage certificates, obituaries, census reports and also witness testimony to show which persons actually are the decedent's sole surviving next of kin. I have represented clients in these proceedings. The use of professional geneologists and investigators is also essential in proving kinship.

In Tesler, the decedent's maternal cousins were finally able to establish to the satisfaction of the Court that they were the decedent's sole surviving heirs. The case shows how despite preparing a simple Will, very complicated estate administration proceedings may be needed to settle an estate. Advice from an experienced New York Estate attorney is essential both to prepare an estate plan that can avoid complicated litigation and to help family members succeed in protecting their inheritance rights.

Continue reading "A New York Last Will May Require Proof Of Kinship" »

Under New York Law, spouses enjoy protections regarding rights to share in the other spouse's assets. While both spouses are alive, divorce laws such as "equitable distribution" provide a framework for the disposition of assets between spouses. However, when one spouse dies, rules provided by the New York Estates, Powers and Trusts Law and the Surrogate's Court Procedure Act come into play. Aspects of other statutory rules also must be considered between spouses, both alive and deceased, such as property concepts of ownership in the form of joint ownership or tenancy by the entirety.

During the course of a marriage, spouses may prepare Last Wills, as well as other papers such as pre-nuptial agreements or separation agreements. These agreements may obligate a spouse to provide certain benefits for the other spouse such as maintenance (i.e., alimony) and a paid up life insurance policy. Generally, these agreements are considered contracts and if a spouse dies without satisfying the obligations under the agreement his estate may be found liable for payments he failed to make during life. Additionally, these pre or post martial agreements can provide for a waiver of rights to share in the other's estate or to act as executor or administrator of the estate.

During estate settlement the requirements of these agreements must be reviewed and considered. Experienced probate attorneys representing executors and administrators typically review these documents so that the estate fiduciary can fully understand the impact the decedent's lifetime agreements will have on estate administration.

Two recent Surrogate's Court cases demonstrate how such agreements can affect the final settlement of an estate. In the Matter of Griffin, decided by Monroe County Justice Edmund A. Calvaruso on September 29, 2011 and reported in the New York Law Journal on October 24, 2011, the decedent had signed a Separation Agreement with his wife prior to death. When the decedent died he and his wife owned a house as tenants by the entirety. The agreement had provided that the house should be sold and the sales proceeds divided between them. Among other issues decided by the Court, it was determined that notwithstanding the agreement, following the decedent's death since the parties were still married, the surviving spouse was entitled to the full proceeds from the sale of the house. The house was not sold until after death. Since the house was still owned by the decedent and his wife as tenants by its entirety at his death, title to the entire house passed by operation of law to the surviving spouse as surviving tenant by entirety and the wife's property rights as a tenant by the entirety were not terminated by the separation agreement.

In Matter of Piyavan Chantarasmi [a/k/a Matter of Bruan], decided by Westchester Surrogate Anthony A. Scarpino on January 26, 2012 and reported in the New York Law Journal on February 23, 2012, the decedent had signed a Pre-Nuptial Agreement. The agreement provided among other things that he would leave 70% of his estate to trusts to be set up for his children in his Will. The decedent died Intestate (without a Will), due to an accident and, therefore, did not establish the trusts as required by the pre-nuptial agreement. The Court allowed the Estate Administrators to draft and create the trusts for the children as was required by the agreement.

Griffin and Chantarasmi both show that Estate Executors and Administrators must review all agreements and obligations relating to the decedent so that estate administration is properly handled. I have represented estates where these types of agreements had been entered into by the decedent and have advised the estate fiduciaries regarding the implications of these matters.

Continue reading "New York Estates May Be Affected by Marital Agreements" »

A New York estate proceeding in the Surrogate's Court requires the participation of all interested parties. First and foremost, a decedent's distributees (next of kin) must be identified so that proper notice, usually in the form of a Citation or Notice, can be sent to the parties at their current address. A due diligence search must be made to determine both the identity and address of all distributees. Both Probate and Intestate Administration proceedings require that these parties be included in the case. Failure to properly include necessary parties in Estate proceedings, particularly where estate litigation is involved, can create a defect whereby the Court's final determination may be subject to being found void.

The New York Probate Lawyer Blog has previously discussed issues involved where a decedent-father had children but was not married to the child's mother at the time the child was born. These non-marital children - distributees - usually face an uphill battle to show that they are, in fact, children of the decedent, and that they are entitled to a share of the decedent's estate or other rights they are given as distributees in the Court process.

New York Estates, Powers and Trusts Law Section 4-1.2 entitled "Inheritance by non-marital children", sets forth the grounds and manner by which a non-marital child can demonstrate his or her relationship. The statute provides that a non-marital child "is the legitimate child of his mother." However, with respect to his father, unless there is some Court Order or official determination of paternity, the most common avenue to prove kinship is to follow the statutory direction and provide "clear and convincing evidence" that "the father openly and notoriously acknowledged the child as his own." The statute also provides for proof by "genetic marker testing."

I have represented individuals who sought to inherit an estate where it was necessary to present evidence to the Court that satisfied EPTL 4-1.2. A hearing is commonly held by the Surrogate or a Court referee and documents and witnesses are presented to satisfy the legal requirements of open and notorious acknowledgement.

In a recent case decided by Westchester Surrogate Anthony A Scarpino on January 19, 2012 and reported in the New York Law Journal on January 27, 2012 entitled, Matter of the Estate of Michael Konstantin, issues regarding proper notice of Surrogate's Court proceedings and proof of kinship of a non-marital child converged. In Konstantine, a proceeding was commenced by a non-marital child to vacate the probate of the decedent's Last Will and the distribution of millions of dollars of wrongful death proceeds on the ground that the non-marital child was not included as a party to the prior proceedings and was entitled to receive a share of the proceeds. Based upon the evidence presented to the Court, the Surrogate found that the child presented some evidence that "the decedent openly and notoriously acknowledged the non-marital child as his own" and also showed that genetic marker testing was a proper method of discovery. Therefore, the Court directed that the decedent's other children submit to genetic marker testing which has a high probability of showing whether the non-marital child had a common father.

Surrogate's Court cases require the assistance of experienced estate attorneys who are familiar with the rules and procedures of estate settlement to protect the interest of the parties interested in a decedent's estate.

Continue reading "New York Non-Marital Children Can Inherit From Their Father" »

The appointment of a Guardian under Article 81 of the Mental Hygiene Law ("MHL") is subject to the procedures set forth in the statute. The proceeding is commenced by filing an Order to Show Cause and Verified Petition with the New York Supreme Court. The petitioner contains a significant amount of information concerning the alleged incapacitated person ("AIP") including a designation of the AIP's ability to manage activities of daily living (MHL Section 81.08).

Manhattan Guardianships, as well as Guardianship proceedings in other New York counties, require that notice of the proceeding be given to the AIP's spouse, parents, adult children, adult siblings and the persons with whom the AIP resides (MHL Section 81.07).

Information regarding the AIP's family may not always be readily available. This is particularly so where the Guardianship proceeding is commenced by a non-related party such as a New York Department through Adult Protective Services or a medical facility or a nursing home.

It is not uncommon for a group of relatives to be at odds concerning the appointment of a Guardian. Different individuals may have competing views as to whether a Guardian should be appointed and, if so, who the most appropriate person is to act as Guardian of the Person or Property. Sometimes, one of the parties to the Court action has already been exercising control over the AIP's property and personal affairs, possibly through the use of a Durable Power of Attorney or Health Care Proxy. Such person may resent interference from other family members and try to restrict their access to the AIP or involvement with decision making. In these situations, a full hearing of the competing claims and assertions can be held by the Court in order to ascertain what is in the best interest of the AIP.

A Bronx Guardianship case in which competing family views were presented to the Court was recently decided by the Honorable Alexander W. Hunter, entitled Matter of G.V.S., decided on December 16, 2011 and reported in the New York Law Journal on January 23, 2012.

In G.V.S., the AIP was a 73 year old person who became incapacitated due to a stroke. A Guardianship Petition was filed by the person's daughter. Testimony at the Court hearing was given by the daughter, two sons, the person's long-time companion, the person's son-in-law and brother. Family members had complained that the petitioner-daughter had tried to control the AIP's affairs and had excluded them from contact with the AIP.

Although the Court appointed the daughter as Guardian of the AIP's person and property, the Court directed that she was not allowed to prevent the other family members from having access to the AIP and that she must keep them informed concerning the AIP's health and medical condition.
G.V.S. demonstrates that a Guardianship proceeding not only involves matters regarding the AIP's ability to care for his or her affairs, but also issues concerning the friends and relatives who might be involved in the person's physical care and property management. Guardianship attorneys and their clients need to review and evaluate all of these aspects when commencing a Guardianship case so that the Court can be presented with all of the relevant information to make a determination that will be for the long-term benefit of the AIP.

Continue reading "New York Guardianship May Involve Many Family Members with Contentious Relationships" »

Estate Planning Attorneys in Nassau and Westchester, as in all other New York Counties, are well aware that the documents they prepare for clients must have clearly worded provisions.

A Last Will is a testamentary statement as to where and how a decedent's assets are to be disposed of. In its most fundamental form a Last Will can set forth a number of dispositions. There can be a statement that certain individuals or entities are to receive a specified property or a specified amount of money.

Additionally, the residue or balance of the estate can be disposed of in any number of ways such as by percentages to a number of recipients. Trusts that are created in the Will are called testamentary trusts. These trusts only come into being after the Will is admitted to probate and the trust is funded. InterVivos Trusts are created outside of a Will and can begin to function as soon as they are prepared.

A New York Will also contains provisions for the appointment of Executors, as well as Trustees of any trust created by the Will. Also, Guardians for minor children can be nominated in a Last Will. Beneficiaries and alternate beneficiaries that are named in the Will should be accurately identified by their relation to the decedent and their names should be correctly spelled.

The utmost care is required so that the Will provisions are clearly worded. Such clarity is essential so that the decedent's intent can be carried out by his or her Executor and Trustee. Where provisions in a Will and/or Trust are confusing or ambiguous, Executors, Trustees, beneficiaries and the Court are left to try and decipher what the decedent really meant and desired regarding the disposition of property. If the interested parties cannot agree as to the document's meaning then a Court must construe the intent of the testator. In a proceeding for the Construction of a Will the Court does not rewrite Will provisions. Instead, the Court attempts to carry out the intentions of the decedent. Construction proceedings can involve complex issues for probate lawyers and their clients who are Executors and estate beneficiaries.

A recent example of confusing language requiring Court clarification occurred in the case of Matter of Winifred Gooding Brice, decided by Surrogate Edward W. McCarthy III, (Surrogate's Court, Nassau County) on December 13, 2011 and reported in the New York Law Journal on January 10, 2012.

In Gooding, the decedent had executed a Last Will which was followed by the decedent's signing six Codicils. A Codicil is essentially an amendment to the original Will. A question of construction arose because there was a contradiction between two codicils concerning the time a certain trust was to terminate.

Gooding shows that in order to avoid inconsistencies between multiple Codicils and a Last Will, it would be preferable to rewrite and revise the entire Last Will and incorporate all of the modifications into a single document that would not be confusing. By re-doing the entire Will, estate planning and estate administration can be streamlined.

Continue reading "New York Wills Need to Clearly State a Testator's Estate Plan" »

Manhattan Guardianship of an incapacitated person, as well as proceedings throughout New York, requires a Court hearing and a determination that clear and convincing evidence has been presented that a Guardian is necessary. Article 81 of the New York Mental Hygiene Law ("MHL"), sets forth the substantive and procedural guidelines for the appointment of a property management guardian and a personal needs guardian.

Among the many considerations and determinations that the Court must make in these proceedings is the selection of the proper person or entity to act as Guardian. MHL Section 81.19, entitled "Eligibility as guardian," provides the Court with some direction in selecting an appropriate Guardian.

As a general matter, appointment of family members of the incapacitated person is usually preferred. In many cases, the Petitioner in the proceeding is a close relative such as a child or a spouse. Typically there is a long history of family closeness and caring that the Court will recognize in making its selection.

However, despite this preferential treatment, family members can face obstacles to appointment. In many cases the Court may require that the Guardian file a Bond with the Court. A Bond is similar to an insurance policy. It is obtained from a surety company that insures that if the Guardian misappropriates any of the incapacitated person's funds, the surety company will cover the loss. Unfortunately, sometimes a family member may not qualify to obtain a bond due to a poor credit history or criminal background.

Also, a Court may refuse to appoint a family member as a Guardian where there is a conflict of interest between the family member's interests and those of the incapacitated person or other family members.

Another instance where a family member may not be appointed is where some family conflict or hard feelings exist between competing family members or between the prospective appointee and the incapacitated person. In a recent case entitled Matter of Ella C., decided by the Honorable Betsy Barros on December 14, 2011 (Supreme Court, Kings County) and reported in the New York Law Journal on January 12, 2012, the Court was presented with a petition filed by three of the four children of the alleged incapacitated person. Following a hearing the Court found that the appointment of a Guardian was necessary but did not appoint any of the children, each for various reasons, including improper handling of their mother's financial affairs, animosity between them and their mother, and "mixed loyalties."

Queens Guardianship attorneys and lawyers representing petitioners and families in Guardianship cases throughout New York, must be aware of the requirements to have a Guardian appointed and also the qualifications that are needed for someone to be selected by the Court. As discussed above, just being a family member may not be enough in all situations to be named by the Court as a property management or personal needs Guardian.

Continue reading "New York Guardianship Favors The Appointment of Family Members" »

New York Guardianship proceedings for incapacitated persons are governed by Article 81 of the Mental Hygiene Law (MHL). The New York Probate Lawyer Blog has discussed in numerous posts the powers and duties of a Court appointed Guardian.

In many instances, a petition for Guardianship is filed with the Court because the Alleged Incapacitated Person ("AIP") appears to be the victim of physical or economic abuse. The Guardianship proceeding will require the appointment of a Court Evaluator and/or Attorney for the AIP. These appointees and the Court itself will review whether any wrongdoing is being perpetrated. Sometimes, a government agency called the New York State Mental Hygiene Legal Service is appointed to protect the AIP's interests. MHL Section 81.29 entitled "Effect of the appointment on the incapacitated person" provides the Court broad powers to remedy situations where the AIP has been taken advantage of. For example, the Court can void a contract or a power of attorney entered into by the AIP if the Court finds that the AIP lacked capacity when such papers were signed.

Even though the statute gives the Guardianship Court broad powers to remedy wrongdoing, MHL Section 81.29(d) specifically provides that the Court cannot "invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person." Thus, if the AIP signs a Last Will at the time he or she is found to be incapacitated while still alive, any objection or Will Contest to the validity of the Will must wait until the AIP is deceased and the Will is offered for probate.

In this regard, it is interesting to note that a finding of incapacity in a Guardianship proceeding does not mean that a person lacked the testamentary capacity to execute a Last Will. MHL Section 81.29(b) specifically provides that "subject to subdivision (a), the appointment of a guardian shall not be conclusive evidence that the person lacks capacity for any other purpose, including the capacity to dispose of property by will".

Since a Last Will cannot be challenged until a person dies, many issues involving the disposition of the AIP's estate are fought over only after the AIP dies. Estate settlement and estate administration becomes the new battle ground for problems that could not be settled in the Guardianship.

The Courts clearly recognize that while the overlap of controversies may exist, the paradox of a finding of incapacity for Guardianship cannot forestall an incapacitated person's ability to sign his or her Will.

This circumstance was clearly shown in a recent case entitled Matter of Biaggi, decided by Justice Alexander W. Hunter, Supreme Court, Bronx County, on November 10, 2011 and reported in the New York Law Journal on November 28, 2011. In Biaggi, objections were filed to the action of the Guardian for retaining an attorney to assist the incapacitated person with drafting and executing a new Last Will. The Court found that the Guardian acted appropriately and noted that "allegations of testamentary capacity and undue influence are matters that should be more appropriately be brought up, if necessary, post-mortem and not at this time before this Court."

Continue reading "New York Guardianship and Estate Settlement Often Cross-Paths" »

Probate of Wills in New York requires the compliance with many provisions that are part of the New York Estates, Powers and Trusts Law ("EPTL") and the Surrogate's Court Procedure Act ("SCPA").

First and foremost, EPTL Section 3-2.1 entitled "Execution and attestation of wills; formal requirements "sets forth the statutory mandates that must be followed for a Will to be validly signed. The statute sets out a number of requirements such as: (i) the Will must be signed at the end by the testator (3-2.1(a)(1); (ii) there needs to be "at least two attesting witnesses" (3-2.1(a)(c)(4) ); and (iii) the signature of the testator must be made in the presence of or acknowledged to the witnesses (3-2.1(a)(c)(2).

The formal requirements of the statute are quite extensive and variations or questions that may occur regarding compliance with these formalities often result in controversy and litigation. For example, what happens if all the steps are taken to prepare and execute a Last Will but the original of the Will cannot be located after the testator's death. SCPA 1407 entitled "Proof of lost or destroyed will", provides the process by which a Will can be admitted to probate under such circumstances.

In order for the probate process to be completed, the Court requires that the Attesting Witnesses provide testimony confirming that the signing of the Last Will complied with the formalities of law. This testimony can be live or, as is most often done, by sworn affidavit. However, what happens when one or more of the witnesses are deceased or cannot be located when the Will is being probated. SCPA 1406 entitled "Proof of will by affidavit of attesting witness out of court", allows the witnesses affidavit to be used to establish the validity of the Will. This affidavit is usually made when the Will is signed and is known as a "self-proving" affidavit.

It is a common misconception that preparing and signing a Last Will is a relatively simple matter. As appears from the brief discussion herein and other posts in the New York Probate Lawyer Blog, failure to comply with the statutory rules for Wills can result in battles in the Manhattan Surrogate's Court, or other Surrogate's Courts throughout the State. The decedent's intentions regarding an estate plan can be disrupted or destroyed. The rules and procedures, although complex and sometimes appearing to be archaic, are meant to provide certainty as to a decedent's last wishes and prevent fraud and deception.

A recent case in the New York State Supreme Court, Onondoga County, Castor v. Pulaski, decided by the Honorable Anthony J. Paris on December 14, 2011, shows why the many safeguards to the probate process are necessary. Castor is an action to recover damages for fraud engaged in by individuals who attempted to defraud the Surrogate's Court by filing and attesting to the validity of a fake Will. The plaintiff, who was the decedent's son, actually withdrew his objections to the Will in view of the witness affidavits which were, unbeknownst to him at the time, false.

The Court granted compensatory and punative damages against the defendants and noted in its decision: "Based on Defendants' track record, their testimony is totally incredible except for those portions wherein they admit that they willingly and voluntarily falsely acknowledged Mr. Castor's execution of his Last Will and Testament when, in fact, they did not so witness his signature and he did not request them to sign as witnesses. They also admit to their subsequent execution of the Attesting Witness Affidavits on November 23, 2005, knowing that the information contained in said Affidavits was not true."

The preparation, execution and probate of Wills, as well as proper estate administration, is complicated and involves serious consequences. Due diligence by all individuals and family members, as well as professional guidance from estate and probate attorneys, is essential.

Continue reading "New York Wills Probated After Validity is Established" »

The New York Probate of a Last Will and an administration proceeding for an intestate (no Will) estate each requires compliance with provisions in the New York Estates Powers and Trusts Law (EPTL) and the Surrogate's Court Procedure Act (SCPA).

Among the most fundamental provisions of these statutes is the requirement that parties who have an interest in the proceedings receive proper notice so that they can appear in Court and protect their rights. In this regard, it is not always easy to determine or to locate all the parties whose interests must be disclosed to Court so that proper notice is provided to them.

For example, in both probate and intestate administration proceedings, all of the decedent's distributees must be determined and located so that notice, usually in the form of a Citation, can be sent to them. A Citation is a paper issued by the Surrogate's Court in New York, whether in Nassau County or Brooklyn or otherwise, in which the Court designates a date for the case to appear on the Court calendar and advises the party receiving the Citation to appear on such date in connection with the particular relief that is to be presented (i.e., probate of the Will).

The New York Probate Lawyer Blog has previously discussed some of the many issues that arise in determining interested parties such as questions regarding Kinship and problems faced by persons whose father was not married to their mother at the time of birth.

In a recent case entitled Matter of Cutler, which was decided on October 31, 2011 and reported in the New York Law Journal on November 14, 2011, Surrogate Edward W. McCarthy III (Nassau County) was presented with an issue concerning a biological child of the decedent. It appears that the child had been adopted by a stepfather after the decedent and the child's mother were divorced. In connection with the probate of the decedent-father's Last Will, the proposed Executor asked the Court to unseal the child's adoption records so that the child could be located and given notice of the probate proceeding. As explained by the Court, notwithstanding the adoption of the child by the stepfather, New York Domestic Relations Law Section 117(1) provided that the adoption by the stepfather did not eliminate the child's interest as a distributee of the child's deceased parent. Therefore, the child remained a distributee of her father pursuant to EPTL 4-1.1 and was entitled to notice in the probate proceeding.

The Court allowed the unsealing of the records but appointed a Guardian ad Litem to supervise the process to protect the privacy of the adoption process.

As can be seen from Cutler the assistance of a Nassau Probate Lawyer was needed to advise the nominated executor with regard to probating the decedent's Last Will. I have represented many individuals in probate and intestate administration proceedings regarding the identification and location of all parties who must receive notice and providing the Court with the information necessary to complete these cases. Estate settlement and administration often necessitates a full review of a decedent's family history which requires extensive research. While thoughtful estate planning through the use of a Last Will and Living Trust may avoid some of these post-death problems, it is more often the case that such planning has not been done and estate administration is delayed and complicated while a search for interested parties is performed.

Continue reading "New York Distributees May Be Adopted Persons and Interested in a Decedent's Estate" »

Estate settlement in New York, including Westchester and Suffolk counties, requires a consideration of many issues. A post in the New York Probate Lawyer Blog on December 6, 2011 talked about a number of estate tax issues that should be considered, including the current $5 million federal tax exemption and "portability" of the unused exemption between spouses.

Executors and Administrators have the fiduciary responsibility of calculating and preparing both Federal and New York State estate taxes, as well as fiduciary estate income taxes. Once an estate comes into existence it is like an ongoing business. Assets must be determined and collected and liabilities and debts need to be paid or resolved. Essentially, the fair market value of the assets owned by a decedent at death will form the basis for determining the estate tax obligation. The income and expenses generated by the estate during the course of Estate Administration are factors to be considered in determining the estate's annual income tax liability.

Estate taxes are typically due to be paid nine (9) months after the decedent's date of death. Fiduciary income tax returns are usually due in April. Extensions for the filing of estate tax and income tax returns are routinely obtained but estimated payments on account of the taxes due must be timely made or interest and possibly penalties can be imposed.

The problem faced by many fiduciaries is obtaining enough information about assets, income, expenses and liabilities in a relatively short period of time so that accurate returns can be prepared and appropriate estimated payments can be made. This process can be complicated where the decedent's assets and income are not easily discovered or are complicated by issues of valuation or litigation regarding ownership. Nassau estate attorneys, like estate attorneys throughout New York, work closely with executors, administrators and trustees to obtain necessary information and plan for the filing and payment of these taxes.

An example of such problems was recently reported with regard to the estate of Brooke Astor. Many articles have been written concerning the estate of socialite Brooke Astor who died on August 13, 2007 and whose son was convicted of stealing her assets. In an article written by William P. Barrett which appeared in Forbes on December 7, 2011, it was reported that the IRS is seeking upwards of $62 million in taxes from the estate, which includes millions of dollars in assessed penalties. The tax disputes seem to concern charitable deductions that the IRS is refusing to recognize along with the failure of the decedent to file and pay certain gift taxes during her lifetime.

It is not uncommon for actions and failures to act by a decedent during life to have a dramatic effect upon estate settlement and, ultimately, estate beneficiaries. Suppose a decedent due to illness or neglect failed to file or pay income or gift taxes during the years prior to death. The estate fiduciaries have a fiduciary obligation to prepare these old and overdue tax returns and pay the tax liability along with any interest and penalty charges. Such payments may have a large impact upon the amount of monies that pass under a Last Will or by intestacy to the decedent's beneficiaries. The advice and counsel of estate attorneys is essential when dealing with these matters.

Continue reading "New York Estate Administration Must Always Consider Tax Issues" »

The Estate Tax continues to generate many articles and much analysis. As previously reported in the New York Probate Lawyer Blog, the changes in the Federal Estate Tax that occurred in December 2010 resulted in increasing the Federal estate tax exemption to $5 million dollars for 2010, 2011 and 2012. The Federal gift tax exemption for 2010 was $1 million but will increase to $5 million for 2011 and 2012. Also, during these years, the 100% marital deduction will remain and the new legislation introduces the new concept of "portability" which allows a decedent to transfer his or her unused federal estate tax exemption to a surviving spouse.

While these new tax provisions may protect more estates from potential federal estate taxes, tremendous uncertainty still exists. The new estate tax provisions expire at the end of 2012 after which the exemption shrinks to $1 million. Adding to the complexity is the New York State estate tax which currently has an exemption of only $1 million. Thus, if a decedent's estate transferred more than $1 million to a non-spouse, the estate may be subject to New York estate tax. For example, if a decedent's estate was $2,000,000 and was inherited by children, the $5,000,000 federal exemption would result in no federal estate tax. However, a $2,000,000 estate would result in a $99,600.00 New York estate tax.

Consulting with a New York estate planning attorney is important both to plan an estate for the future and to help with estate settlement and administration following a death. One important aspect of post-death planning can involve the use of the new "portability" provision. A key aspect of preserving the unused portion of a decedent's federal exemption is to timely file a Federal estate tax return (Form 706). In a recent article in Forbes by Robertson Williams, dated November 30, 2011,The Coming Flood of Estate Tax Returns, the author notes that many tax returns may be filed for the sole purpose of preserving the portable exemption from one spouse to the other.

Estate Executors and Administrators have the fiduciary responsibility of collecting estate assets, paying debts and expenses, and preparing and filing estate tax returns. In view of the complexity of the tax laws, the job facing the fiduciary is not easy. Consultation with probate and estate settlement lawyers and other tax advisors is essential to protect estate assets and take advantage of all deductions and exemptions.

Continue reading "Estate Tax in New York Remains Uncertain" »

The New York Probate Lawyer Blog has reviewed the many instances where family status or kinship can affect an inheritance. In a blog post dated November 22, 2011, there was a discussion regarding the determination of kinship in order to establish a person's right to receive a share of a decedent's estate.

Most cases in New York Surrogate's Courts, including Manhattan Probate proceedings or Westchester intestate Administration proceedings, require that a decedent's heirs be specified so that their rights are protected and the estate is distributed correctly.

It is not uncommon to find disputes among heirs and other estate beneficiaries concerning the validity of a claim as to heirship. Issues involving adoption, paternity, artificial insemination and other questions as to family relations can become fierce battles, especially where the outcome involves large sums of money in the form of an inheritance.

One particular area where controversy can occur is the determination of a decedent's spouse. While it may appear to be routine to ascertain a person's wife or husband, difficulties can arise, particularly where individuals live in many different states and countries during their lives all of which have different rules and recording keeping methods for marriages and divorces. The determination of a decedent's surviving spouse is essential for many reasons. From a tax standpoint, the Federal and New York estate tax laws provide that assets passing to the surviving spouse qualify for a 100% marital deduction. A surviving spouse also has many rights under New York estate laws including the right of spousal election. A spousal right of election gives a surviving spouse the right to receive a share of the decedent's estate notwithstanding that the decedent may have disinherited the spouse. The New York right of election is provided in Estates, Powers and Trusts Law section 5-1.1-A.

In order to invoke the benefits of the statute, an individual must, in fact, be the decedent's surviving spouse. A recent case entitled Will of Newman decided by Surrogate John M. Czgier, Jr., in Suffolk County Surrogate's Court on September 26, 2011 and reported in the New York Law Journal on November 1, 2011, shows how important it is to closely examine the facts supporting a claim of spousal status.

In Newman, the decedent's spouse filed a right of election. It was determined after investigation that the surviving spouse and the decedent had gotten married on a date 3 months before the surviving spouse finalized a divorce from a prior marriage. Since the surviving spouse's prior marriage was not dissolved before the marriage to the decedent, the marriage between the decedent and the claiming surviving spouse was void. Thus, the right of election could not be asserted due to the invalidity of the marriage.

New York estate planning is also affected by spousal rights. Wills and trusts can be drafted to take advantage of the estate tax marital deduction and bequests can be provided to insure that spousal rights are satisfied.

I have represented estate fiduciarys and claimants in situations where spousal claims must be determined and resolved. I also provide assistance to clients to develop estate plans that take into account a spouse's right to share in an estate.

Continue reading "New York Inheritance Can Depend on Family Status Such As A Valid Marriage" »