Articles Posted in Estate Administration

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When a person dies without a Last Will he is said to have died intestate. The handling of an intestate estate falls under the heading of an administration proceeding as opposed to a probate proceeding when a person dies and leaves a Last Will. The fiduciary of an intestate estate is called an Administrator. The fiduciary of an estate where there is a Will is typically called an Executor. While a Will usually names and identifies the persons who are to be appointed as Executors, there is no such designation by a decedent when there is no Will. As a result, reference must be made to the provisions of the Surrogate’s Court Procedure Act (SCPA). Section 1001 of the SCPA provides a list of the decedent’s next of kin and others who have a right to be appointed as the estate administrator. The section is entitled “Order of priority for granting letters of administration”. The statutory list of persons who have the priority of appointment begins with the decedent’s spouse, and then goes to children, grandchildren, parents and more distant relatives. One of the problems encountered with appointing an administrator is that there may be multiple individuals who have the same priority rights to appointment and they may be adverse to each other. These situations typically result in estate litigation in the Surrogate’s Courts where the Court is called upon to decide which person or persons should be appointed as the fiduciary.

Additionally, there are cases where the person who has the priority for appointment as administrator is opposed by other interested parties who may assert that the proposed administrator is not appropriate or is unfit to serve as the estate fiduciary. Continue reading →

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The Estate Administration process involves many different issues.  A New York Estate Lawyer typically represents a fiduciary, such as an Executor or Administrator, who is responsible for handling these matters.  The collection of the decedent’s assets is always a primary function to be carried out.  Some assets are easy to obtain such as bank accounts and brokerage accounts that are in the name of the decedent. However, many situations arise where the determination and collection of estate assets is extremely difficult and complex.

One area that consistently presents challenges concerns the ownership rights to real estate.  Unfortunately, the names on deeds and title issues regarding prior deed transfers can present immense problems for a fiduciary.  This is compounded by the fact that real estate interests tends to have large values. Therefore, parties with interests adverse to the estate have a tremendous incentive to interfere with or dispute estate ownership rights. Continue reading →

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A Fiduciary in New York has many duties and obligations. The New York Probate Lawyer Blog has posted many articles discussing these matters. Executors, Administrators and Trustees must not breach their fiduciary duties. There are many different obligations. Generally, a fiduciary is held to a very high standard by the Courts. The reason for this view is that a fiduciary is entrusted with a tremendous amount of authority and discretion and is required to act in the best interest of the persons that are to be benefited by the fiduciary’s actions.

A fiduciary’s powers are very extensive. For example, in the case of an estate fiduciary such as an Executor or Administrator, Estates, Powers and Trusts Law (EPTL) Section 11-1.1 entitled “Fiduciaries’ Powers”, sets forth many areas in which the executor or administrator may act. Among the many powers enumerated in the statute is the power to invest estate property, to sell or mortgage property, to settle claims and to pay proper and reasonable estate expenses. In addition, a person’s Last Will or Trust can give a fiduciary powers that are not provided by the statute. Such documents can also limit or direct a fiduciary with respect to the exercise of certain powers. Continue reading →

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There are many cases in the Surrogate’s Court which involve a Public Administrator. Generally, a Public Administrator is a public official who is given the authority to administer estates where no other person or entity is properly available to act as fiduciary. Article 11 of the Surrogate’s Court Procedure Act (SCPA) sets forth provisions regarding such administrators in New York City. For example, SCPA Section 1112 is entitled “Authority to act” and provides that the Public Administrator in a county, such as Kings County or Queens County, can “take charge of the personal property of the intestate” when a decedent dies intestate and there is no known person eligible to receive letters of administration. Continue reading →

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Beneficiaries of an Estate in New York may be determined in a number of different ways.  The most recognizable method of beneficiary designation is the naming of an individual or institution to receive a benefit in a Last Will.  There are many different types of dispositions that can be made in a Will such as leaving a specific item or property to a beneficiary or by just setting forth that the beneficiary is to receive a certain share or percentage of an estate.

Another method of beneficiary selection is where a decedent does not prepare a Last Will. When a person dies intestate his estate is distributed to his distributees (i.e. heirs at law). The persons who qualify as distributees are determined by the New York Estate laws. Estate Lawyers in New York are familiar with Estates, Powers and Trusts Law (EPTL) Section 4-1.1 which provides the priority of the individuals entitled to share in the intestate estate. EPTL 4-1.1 is entitled “Descent and distribution of a decedent’s estate”. This statute has been discussed in many prior articles in the New York Probate Lawyer Blog. Continue reading →

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Fiduciaries who are appointed by the Surrogate’s Courts in New York have many responsibilities.  The fiduciary can be an Executor or an Administrator.  It is very common for a decedent’s estate to have amongst its assets real estate.  In fact, in many situations a decedent’s home may be the most valuable asset of an estate.

Single and multi-family homes exist throughout the New York Metropolitan area and over the years the value of these properties have increased dramatically. The New York Probate Lawyer Blog has provided numerous posts that discuss issues relating to the eviction of persons who occupy estate real property. To re-cap, when a person dies the house in which he/she lived may continue to be occupied by someone who is not entitled to receive the entire property either pursuant to a Last Will or through intestate administration. The occupant could be a third-party tenant or perhaps even a relative of the decedent. Continue reading →

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An Executor or Administrator in New York has a duty to discover and collect all of the assets that rightfully belong to a decedent’s estate.  If the estate fiduciary fails to perform this task properly the estate beneficiaries may claim that there was a breach of a fiduciary duty.

Identifying and collecting estate assets requires that the fiduciary act diligently and pursue proper avenues to complete his obligations. The New York Probate Lawyer Blog has previously discussed some of the Estate Litigation procedures that can be used to recover estate property. For example, Surrogate’s Court Procedure Act (SCPA) Section 2103 provides a very common method to obtain estate assets. This statute is entitled “Proceeding by fiduciary to discover property withheld or obtain information.” When an executor or administrator has information that a third party has possession of an asset that belongs to an estate, the fiduciary can file a petition with the Surrogate’s Court to obtain the property. SCPA Sections 2103 and 2104 contemplate two types of Court proceedings. First, the statute allows the fiduciary to obtain information from the third-party by deposition questions and paper discovery as to whether the person is actually in possession of estate property. If so, the statute then provides for a proceeding in which the actual ownership of the property can be determined. Continue reading →

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One of the more common problems that is encountered by estate Executors and Administrators is the recovery of a decedent’s property from third parties. New York Estate Attorneys frequently need to counsel fiduciaries regarding the Court procedures to obtain assets that belong to an estate. I have represented fiduciaries in numerous cases to recover property.

Very often an Executor or Administrator is confronted with a situation where a house or apartment that was owned by the decedent continues to be occupied by persons’ after the decedent dies. Moreover, such occupants refuse to vacate the property which prevents the Executor from selling the property and completing estate settlement. Continue reading →

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A New York Estate Planning attorney is familiar with the numerous issues that need to be reviewed when creating estate planning documents. Such documents include Last Wills and Living Trusts.

As pointed out in the New York Probate Lawyer Blog, a fundamental aspect in the planning process is understanding the property owned by a person and the manner in which such asset is held. For example, real estate interests can be owned by someone in their individual name or in their name as a joint tenant with another person or as a tenant in common with others. When a person dies, an asset that is owned jointly or with a designated beneficiary passes to the joint owner or designee outside of the decedent’s estate. Thus, such property would not be subject to the terms of a Last Will or the laws of intestacy. Continue reading →

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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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