Articles Posted in Estate Administration

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When a person dies without a Last Will and Testament he is deemed to have died intestate. As discussed in many earlier posts in the New York Probate Lawyer Blog, where there is an intestate decedent, a petition needs to be filed with the Surrogate’s Court seeking Letters of Administration.

The estate administrator has similar statutory powers to those of an executor where a person leaves a Will. There are numerous issues that can arise in the context of intestate administration. A recent case decided on October 9, 2015 by Brooklyn Surrogate Diana Johnson entitled Estate of Evans provides an interesting analysis of just some of the legal and factual complexities. Continue reading →

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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 →

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The probate process in New York can be very complex. When a person dies and leaves a Last Will and Testament it is necessary to probate the decedent’s Will to have an Executor appointed to administer the estate. There have been many articles published in the New York Probate Lawyer Blog providing information regarding probate issues.

The presentation of a petition to the Surrogate’s Court which seeks probate of a Will essentially asks the Court to validate the Will and appoint an Executor. The Court issues Letters Testamentary to the appointed Executor. Continue reading →

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Estate planning in New York is an important consideration for many reasons. In addition to designating the manner in which a persons assets are to be distributed, an important aspect of planning is the nomination of an estate Executor. By creating a Last Will a testator can name the persons who are to act as Executors and also Successor Executors, if needed. Obviously, selecting the individuals that you trust and have confidence in to carry out the terms and intentions of the Will provisions provides the essence of insuring that a plan for estate settlement is accomplished.

When a person dies intestate, or without a Will, his estate becomes subject to the rules and laws concerning an Administration proceeding rather than the probate process. The Administration proceeding is focused on the appointment of an estate Administrator. Since there is no Will that nominates a fiduciary, the proceeding is controlled by Surrogate’s Court Procedure Act (SCPA) 1001 which is entitled “Order of priority for granting letters of administration”.  The statute provides the list of the decedent’s next of kin who have the right to be appointed as the estate Administrator. According to the statute, the decedent’s spouse has priority, then children, grandchildren, the decedent’s parents and then brothers and sisters. While the statute provides an orderly process for the appointment of an Administrator, the persons who have priority may not have been the first choice of the decedent if he had named an Executor in a Last Will. Continue reading →

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Fiduciaries such as Executors, Administrators and Trustees are frequently required to participate in proceedings in the Surrogate’s Court. There are many different types of cases in the Court such as probate and administration proceedings and accountings. For example a Brooklyn Estate Lawyer might be retained by an Executor to represent the executor in a discovery proceeding to recover assets that are claimed to have belonged to the decedent. Similarly, a Bronx Estate Attorney may be hired by a fiduciary to assist with the interpretation or construction of a Last Will or Trust Agreement that is ambiguous.

There are occasions when the Executor or other fiduciary may find hiring an attorney to be difficult because the estate or the trust either does not have any assets or the assets are not liquid or available to pay counsel fees. A question would then arise as to whether the fiduciary could represent himself pro se in his capacity as a fiduciary. This issue was recently presented to Manhattan Surrogate Nora Anderson in “Matter of Van Patten” which was decided on February 10, 2014 and reported in the New York Law Journal. In Van Patten the non-attorney Executor of the estate of a trust income beneficiary sought to represent herself pro-se in the trustee’s accounting proceeding. The Court found that the Executor, as a fiduciary, had obligations to potential estate beneficiaries and creditors and the pro-se representation by a non-attorney fiduciary would constitute an unlawful practice of law. The Executor was directed to retain an attorney or risk having the estate’s objections to the trust accounting dismissed.

As can be seen from this case, representation of a fiduciary in Surrogate’s Court proceedings can be quite complex. A fiduciary has numerous obligations and must protect the interests of estate beneficiaries as well as other parties such as creditors. As a New York estate attorney, I am familiar with the various duties that estate representatives must attend to as well as the laws and procedures involved with estate settlement. I assist my clients regarding these issues and work with them concerning all matters to finalize an estate.

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An estate executor or administrator has the fiduciary duty to locate and collect the decedent’s assets. This obligation is paramount in protecting the beneficiaries’ interests and maximizing the distributions that they will receive upon the settlement of the decedent’s estate. Queens estate lawyers and Brooklyn probate attorneys are familiar with the various steps that estate representatives should take to identify these assets. Items such as bank accounts, real estate, stocks and bonds and other investments that are owned by a decedent are fairly easy to identify and to collect, liquidate and deposit into an estate bank account. Other assets may not be so easy to recognize or to get control over. For example, a decedent may have ownership in copyrights, trademarks and patents. Another interesting property interest may involve what are known as publicity rights. These rights which are recognized in a number of states but not in New York allow a person’s estate or heirs to retain the right to commercially exploit the person’s celebrity after death. The post-death marketing of celebrities such as Marilyn Monroe and Michael Jackson has generated vast sums of money. There have recently been a number of cases dealing with these rights. In an article by Eriq Gardner in on January 29, 2014 entitled “Jimi Hendrix Estate Wins Appeal Over Unlicensed Merchandise“, it was reported that a Federal appeals court issued a ruling expanding the enforceability of publicity rights. In the case of Jimi Hendrix, even though the rock star’s estate was based in New York which state does not recognize these rights, the Court stated that the estate could take advantage of Washington state’s laws that have broad protection of publicity rights with regard to a dispute in Washington state.

Another interesting rights battle was reported by Eriq Gardner at on February 7, 2014 in a post entitled “Twitter in Legal War Over @JamesDean“. In this court case the company that manages the late actor James Dean’s licensing rights has sued Twitter to stop the use by an anonymous person who has registered @JamesDean. This case is in an Indian State Court and alleges a wrongful exploitation of the actor’s publicity rights.

In yet another recent case reported by Eriq Gardner on January 30, 2014 at entitled “Bing Crosby’s First Wife Denied Value of His Publicity Rights“, the court indicated that such rights may not be community rights and, therefore, a celebrity is entitled to the whole of such rights notwithstanding any lifetime spousal claims.

As can be seen from the above discussion, an estate fiduciary may be faced with many complex issues regarding a decedent’s assets during the course of estate administration. As a New York estate lawyer I have represented many executors and administrators and assisted them in collecting and distributing the assets of a decedent.

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New York Executors and Administrators have the obligation to settle a decedent’s estate. As discussed in previous posts in the New York Probate Lawyer Blog, an Executor is appointed when the decedent dies leaving a Last Will and Testament. An Administrator is appointed when there is no Will and a decedent dies intestate.

The powers of a fiduciary are provided for in a number of ways. New York Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ Powers” sets forth the many statutory items that a fiduciary can perform such as investing estate property, collecting rent and paying all reasonable and proper expenses. In addition to the powers provided by the statute, where a decedent leaves a Will, such document can modify or expand the powers given to the fiduciary. Also, when the Court appoints a fiduciary, the appointment may provide a limitation or specification of the powers. In the case of an Executor, the letters testamentary that are issued by the Court after the Will is admitted to probate can provide a limitation that the fiduciary can collect only a certain amount of assets or perform only limited tasks. Similarly, letters of administration that are issued to an administrator can contain similar limitations.

During the course of estate settlement, a fiduciary is going to collect estate assets such as bank and brokerage accounts that were owned by the decedent. In order to obtain these funds for the estate, the bank or brokerage house typically requests that the fiduciary present a certified copy of the letter of appointment which shows that the fiduciary is authorized to act on behalf of the estate. In most cases upon the presentation of the letters and other supporting papers such as a copy of a death certificate and withdrawal forms, the decedent’s funds are then forwarded to the estate for deposit into an estate bank account.

Sometimes the collection of estate assets becomes more complicated and the person or institution holding the decedent’s funds does not cooperate with the fiduciary or turn over the decedent’s assets. In a recent case decided by Bronx Surrogate Nelida Malave-Gonzalez on January 27, 2014, entitled “Estate of Rose Hamilton” and reported in the New York Law Journal, Capital One Bank refused to cooperate with an administrator with regard to providing access to the decedent’s safe deposit box. Notwithstanding that the letters of administration issued to the administrator limited the collection of assets to $38,000.00, the Surrogate held that the fiduciary still had the authority to have access to the safe deposit box.

A Brooklyn Probate Attorney and a Queens Probate Attorney can assist a fiduciary with collecting a decedent’s assets and settling an estate. I have worked with many fiduciaries throughout New York to help with the administration process.

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There are many aspects in life that can have an impact on a person’s estate. An individual’s marriage is certainly one of the most important and dramatic factors regarding estate rights.

If a decedent was married, a surviving spouse is given many estate rights and privileges. As discussed in numerous posts in the New York Probate Lawyer Blog, a spouse is considered a primary distributee or next of kin. As such, a spouse has a right to act as the Administrator of the estate where the decedent dies intestate (without a Will). A spouse also has the right to receive a minimum amount of a decedent’s estate and cannot be totally disinherited. A spousal right of election is provided by New York Estates, Powers and Trusts Law (EPTL) Section 5-1.1A. Generally speaking, the right of election is the greater of $50,000.00 or one-third of a decedent’s net estate. EPTL Section 5-3.1 also gives a spouse a right to certain basic personal assets of the decedent such as household furniture and a motor vehicle having a value of up to $25,000.00. EPTL 4-1.1 sets forth a spouse’s share of an intestate estate.

The Federal and New York State Estate Tax Laws also have provisions that are favorable to a spouse. The tax laws allow an unlimited marital deduction by which spouses can transfer an unlimited amount of assets between themselves without incurring gift or estate taxes.

Due to the rights and monetary benefits afforded to a spouse in a decedent’s estate it is not unusual to find Estate Litigation regarding a spouse’s interest in an estate. Estate disputes can involve issues as to whether a valid marriage between the decedent and the spouse ever occurred or whether the parties were divorced. EPTL 5-1.2 provides, among other things, that a valid divorce will disqualify a person from invoking spousal rights. Another area of controversy involves pre-nuptial or anti-nuptial agreements whereby a spouse may have agreed to waive or limit spousal rights of inheritance. These agreements can be the source of Estate Contests as to the interpretation of the language in the agreement or whether the agreement is void due to coercion or other factors.

In New York State, like many other states, the divorce laws are based upon concepts such as equitable distribution whereby married couples assets are divided in a so-called equitable manner based upon many factors such as contributions during the marriage, the determination of separate property and long-term valuations of marital assets such as professional licenses and business interests. Equitable distribution may, in fact, provide a spouse with greater monetary benefits than the one-third or one-half interests that are applied by the estate laws after a spouse dies. In a number of instances courts have been confronted with cases where a spouse dies during the divorce process and have been asked to decide whether the estate laws or divorce equitable distribution laws apply to divide the deceased spouse’s assets. Generally, a death will abate or stop the divorce case and, therefore, the estate laws take over. However, the courts have recognized that where a divorce case has essentially been decided, even though the final judgment is not issued, the Courts will allow the equitable distribution laws to apply. In the recent case of AC v DR decided by New York Justice Stacy D. Bennett on August 29, 2013 and reported in the New York Law Journal on September 10, 2013, these very issues were presented for review. In AC the Court had granted a divorce to a husband and had concluded hearing the testimony as to equitable distribution but had not made a final decision as to the financial distribution. When the husband committed suicide the husband’s estate sought to dismiss the divorce case as having been abated by the death. Not only did the court find that the divorce action did not abate since the action was essentially completed, it also found that the husband would not be allowed in equity to defeat the wife’s equitable distribution claims by deliberately causing his own death.

Estate Settlement and Estate Administration often involve the resolution of many issues including the status of a decedent’s next of kin which includes a surviving spouse. I have represented many clients in estate mattes where kinship and spousal issues are important in determining the manner in which estate assets are to be distributed.

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A New York Estate is subject to potential estate taxes. The tax is imposed under both Federal and New York State laws. The New York Probate Lawyer Blog has previously talked about estate taxes. It is the duty of an estate fiduciary such as an Administrator or Executor to determine whether a decedent’s estate must pay any estate tax and to actually pay the tax.

Both the Federal and New York estate tax is due to be filed and paid 9 months following a decedent’s date of death. An automatic extension of 6 months is available to file the tax return. The information required to be reported is a detailed list of all of the assets, debts, expenses and other financial data that provide an economic snap-shot of an estate.

Estate assets are typically valued as of the decedent’s date of death. This gross estate includes all items owned or controlled by the decedent or in which the decedent had an interest as of his death. Such assets include bank accounts, real estate, stocks, bonds and other items having value such as copyrights, trademarks and membership interests in businesses like a partnership or limited liability company.

During the course of estate settlement, it may be easy to obtain date of death values for assets such as bank accounts, real estate, stocks and bonds. Other items such as business interests may be difficult to value and subject to dispute. Upon the review or audit of an estate tax return, the Federal or State tax authorities may contest the value of an asset or deductible expense or liability.

An example of such estate tax dispute is presently occurring with the estate of the late pop star Michael Jackson. As reported by Patrick Temple-West in on August 23, 2013, the IRS claims that the Jackson estate owes Federal tax and penalties of $702 million. In the article “US Agency says Michael Jackson estate owes $702 million in taxes“, it is reported that the estate claimed in its tax filing, among other things, the image and likeness of Jackson had a value of only $2,105 while the IRS placed its value at $434 million.

Similar tax disputes can arise concerning the value of estate tax deductions such as liabilities, debts or expenses incurred in estate administration. As can be seen, potential estate taxes should be a major consideration in estate planning. This is particularly so when a large estate tax liability is expected and there are limited liquid assets available to pay the tax bill. Since the taxes need to be paid within 9 months after a death, there may be very little time to sell such items such as real estate or a cooperative apartment in order to obtain the funds to pay the tax. In many instances the use of life insurance or other pre-death financial planning can help solve this post-death liquidity dilemma.

At the present time, the Federal estate tax exemption is $5,250,000 and the New York exemption is $1,000,000. Also, both jurisdictions allow an unlimited marital deduction. However, the challenge presented in an estate plan is to limit the tax liability when a potentially taxable estate is to be ultimately paid to a non-spouse. In such situations the taxable amounts cannot be protected by the marital deduction.

It is essential that a New York Estate Planning attorney be provided with information regarding a person’s asset values and possible estate tax deductions. In this manner the appropriate tax plan and beneficiary designations can be formulated in documents such as a Last Will or Living Trust.

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New York Estate Attorneys are aware of the many statutes and rules regarding Wills, Estate Settlement and Surrogate’s Court procedures. The Estates, Powers and Trusts Law (“EPTL”) and the Surrogate’s Court Procedure Act (“SCPA”) embody the statutory framework regarding estates practice.

Among the many items contained in these laws are provisions regarding the rights of a decedent’s surviving spouse. As would be expected, a spouse, along with children, play prominent roles when it comes to inheritance. For example, if a person dies intestate (i.e, without a Last Will) EPTL 4-1.1 requires that a spouse receive $50,000 plus one-half of the decedent’s estate when there are also surviving issue (i.e. children). If there are no issue surviving, the spouse receives the entire estate. However, what is the outcome where the decedent does leave a Last Will but makes no provision in the Will for the spouse or for children. In New York a person may disinherit his children entirely. A spouse though may not be completely cut out from inheriting. As discussed in previous posts in the New York Probate Lawyer Blog, EPTL 5-1.1-A entitled “Right of election by surviving spouse” contains provisions that effectively give a spouse at least $50,000 or one-third of a decedent’s net estate. The statute goes on to provide a procedure to follow for an aggrieved spouse to claim this statutory minimum amount. If a spouse is completely disinherited under a Will or is not designated to receive a sum at least equal to the right of election amount, the spouse can prepare and file an Election to take this elective share rather than the lesser amount designated by a Last Will.

The statute provides very explicit procedures that must be followed to preserve and effectuate this election. EPTL 5-1.1-A(d) contains the “Procedure for exercise of right of election” and sets forth requirements which include that the election must be made within 6 months after the issuance of fiduciary letters but not later than 2 years after the death of the decedent. Also, the election must be served on the estate’s personal representative and filed with the Surrogate’s Court.

A recent case decided by Brooklyn Surrogate Diana Johnson entitled Estate of Shlomo Cyngiel illustrates the necessity to obide by the requirements of the Right of Election Statute. Cyngiel was decided on July 23, 2013 and reported in the New York Law Journal on July 30, 2013. The decedent’s spouse died over 5 years after the decedent and, as found by the Court, failed to follow the statutory procedures to timely file for the Election. The deceased spouse’s Executor applied to the Surrogate to grant an extension of the time to file on behalf of the deceased spouse. The Surrogate found that the Executor did not present a justifiable basis to allow an extension of time to allow a late filing. The Court also stated that a right of election is a personal right of a surviving spouse and must be exercised during the spouse’s lifetime. The estate of the surviving spouse was precluded from exercising the election.

The use of a Right of Election is an important aspect in both pre-death Estate Planning and post-death estate administration. Therefore, it is always a good approach to review and discuss these issues with an experienced Estate Lawyer.

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