Articles Posted in Estate Litigation

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When a person dies and leaves a Last Will and Testament, the typical course to follow is to probate the Will.  This Blog has published many posts concerning the probate process.  The Will is filed with the Surrogate’s Court in the county where the decedent had his primary home.  A Probate Petition is also filed with the Court which asks the Court to admit the Will to probate.  Essentially, the request is to have the Court validate the document so that its provisions can then be followed in distributing the decedent’s estate assets.

After a Will is admitted to probate, letters testamentary are issued to the nominated Executor. In the probate proceeding, the Court issues a Citation which provides official notice to the decedent’s next of kin asking them to advise the Court as to whether they intend to object to the Will. Continue reading →

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New York Estate Lawyers frequently refer to Estates, Powers and Trusts Law (EPTL) Section 3-2.1 regarding the formalities required with regard to execution and witnessing of a Last Will. When a petition is filed with the Surrogate’s Court to have a Will admitted to probate, the statutes require that notice of the proceedings be given to the decedent’s next of kin (“distributees”). As discussed in many of the posts in the New York Probate Lawyer Blog, the distributees have a right to file Objections to the Will. In the event the Will is denied probate, then the decedent’s estate is distributed to the heirs as if the decedent died intestate. There are a number of basic Objections that can be set forth in Estate Litigation regarding a Will. These objections include lack of due execution, lack of testamentary capacity, undue influence and duress or coersion. A Will Contest is the part of the probate process where the issues regarding these various objections are finally determined.

The various grounds upon which to base a Will Contest do not generally involve other issues concerning the enforceability or interpretation of Will provisions. A recent case entitled Estate of Attea, decided by Erie County Surrogate Barbara Howe on June 17, 2015, reflects the limited issues involved when determining a Will’s validity. Continue reading →

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A very common issue that arises during the course of estate administration concerns assets that a decedent transfers close to the time of death. These transfers can be in the form of outright gifts or the creation of ownership rights such as a joint tenancy or through a beneficiary designation. For example, a situation may exist where a decedent transfers to another person as an outright gift funds from a bank account. Likewise, the decedent may add a person’s name to a bank account or change a beneficiary designation on an insurance policy or retirement account.

All of these events appear on their surface to be improper especially when the transfer occurs right before a person dies and, in particular, when the transferor is aged and/or suffering from a medical or psychological condition which may impair their judgment. Continue reading →

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The New York Probate Lawyer Blog has talked about many different aspects of estate settlement.  An estate fiduciary such as an Executor or Administrator has a fiduciary obligation to identify, locate and collect estate assets.

In numerous instances, the decedent may have been involved in business or other transactions where his ownership interest in assets may be unclear or complicated by other factors. Likewise, third parties may be in physical possession of assets that are claimed to be owned by an estate but might have been the subject of a gift. Regardless of the situation, the estate fiduciary must determine the true owner of the asset and use all reasonable efforts to collect the asset on behalf of the estate. A recent case decided by Brooklyn Surrogate Diana Johnson on April 21, 2015 entitled Estate of Elberg, provides insight into the problems that an estate executor may face in recovering estate items. Continue reading →

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Estate Attorneys in New York are familiar with the use of a Durable Power of Attorney to assist with various activities. Sometimes a power is signed by a principal to assist with a specific transaction such as the sale or purchase of real estate. The power may be needed because the principal is unavailable to attend a closing of title because he is out of town.

In many other situations, a principal may name an agent in the context of estate planning and provide the agent with very broad powers to act in a number of different areas including real estate transactions, business operating transactions and banking transactions.  New York General Obligations Law Section 5-1501 and subsequent statutory sections comprise “The Statutory Short Form and Other Powers of Attorney For Financial and Estate Planning”. As has been discussed in earlier posts in the New York Probate Lawyer Blog, the power of attorney law was recently revised in an attempt to eliminate the misuse of the agent’s authority and prevent financial abuse. There have been and continue to be many instances where an agent improperly uses the power to obtain economic or other advantages. Continue reading →

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The New York Probate Lawyer Blog has discussed in earlier posts the variety of issues concerning the transfer of a decedent’s assets. One of the most common and valuable estate assets is the decedent’s home. A person’s home can be in the nature of real property such as a single family home. However, New Yorkers are very familiar with living in the setting of an apartment in a high-rise building. Apartments can be as valuable and the subject of controversy as separate residential realty. A decedent may have been living in a cooperative apartment or even in a residential building where he was the tenant in a rent-stabilized or rent-controlled unit. These different forms of property rights can present unique problems to be resolved during estate settlement.

In the case of a cooperative apartment, the decedent’s interests may have been bequeathed in a Last Will to family members or may need to be sold to a third party purchaser.  In each instance, the general rule in a cooperative building is that a transfer of the Unit cannot occur without approval of the cooperative board of directors.  In many cases, such approval is not  easily obtained since the cooperative board is given broad discretion to approve or disapprove of the transfer. Continue reading →

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A New York estate lawyer is familiar with the numerous problems that can arise regarding the administration of a decedent’s estate. Sometimes these matters are the result of actions or relationships that the decedent was involved with prior to death. The estate executor or administrator has a fiduciary obligation to resolve these disputes. Assets of the decedent must be protected and creditors claims must be satisfied or disposed of.

A recent post at hollywoodreporter.com on February 9, 2015 by Austin Siegemund-Braka reports about another chapter in the settlement of the estate of the late pop star Michael Jackson. The post, entitled “Hollywood Docket: Michael Jackson’s Ex-Manager Revives Neverland Ranch Dispute”, relates the details regarding a claim by the pop-star’s manager for unpaid commissions earned during Michael Jackson’s lifetime as well as a claim for a fee for securing a loan on Michael Jackson’s Neverland property to prevent its foreclosure. The estate executors opposed the claims and both parties had filed lawsuits in 2012 that were put on hold pending other related proceedings. The Court has now lifted the stay to allow the issue regarding the Neverland loan to move forward. Continue reading →

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It is very common that a person who dies or is incapacitated receives health care and services that are paid for by government agencies in the form of Medicaid. As New York estate lawyers often encounter, a decedent who had been ill and unable to pay for his care through private insurance or personal funds probably would have had his care paid through Medicaid. Medicaid payments can cover persons who live at home or who reside in nursing homes or other facilities. Particularly where a person has had a serious illness with extensive hospitalization and nursing home stays, the expenses that are paid by Medicaid can be quite large. Under various state laws and rules, Medicaid is entitled to be reimbursed for its expenditures. This reimbursement typically occurs after a person dies if there are assets in his estate. It may be that the decedent passed away owning a home or other assets but had been receiving Medicaid coverage during his life.

It is the fiduciary obligation of an Executor or Administrator to make sure that all of the decedent’s debts and the claims against the estate are satisfied. Thus, the estate fiduciary is required to satisfy a claim for reimbursement that is asserted by the local Medicaid authority. Also, in the event the estate Executor or Administrator is aware that the decedent may have been receiving medicaid benefits, it is important to obtain information regarding this claim before distributing estate assets. Once the assets are distributed to beneficiaries, the Medicaid authority may attempt to obtain payment of the claim against the fiduciary personally and assert that the fiduciary should have known about the claim before he paid the beneficiaries. Estate settlement can be a very complicated process and the collection of assets and payment of a decedent’s debts often require the guidance of an experienced estate attorney. Continue reading →

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New York Estate Planning can involve many different aspects. In most instances, individuals assume that the need to consult an estate planning attorney only arises when a person has significant assets that may result in the imposition of Federal estate taxes or state estate taxes. In fact, even when there is no potential for taxes being imposed at death, the preparation of a Last Will is really a form of estate planning by avoiding the uncertainty of intestate administration.

When tax planning is or may be important, one of the more common planning methods is to use life insurance as a planning device. Life insurance can provide a means by which an estate can increase liquidity and provide funds to pay estate taxes and monetary bequests. A common use of insurance is to create an insurance trust that will own the insurance policy.  The trust will be separate from the decedent’s taxable estate and, therefore, not increase the taxes payable. Continue reading →

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When a person dies without a Last Will he is considered to have died intestate. Queens estate attorneys, like those in other counties, are familiar with the procedure to have an Administrator appointed to settle the estate. The Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL) provide the statutory rules and procedures for the appointment of a fiduciary. Typically, anyone who is interested in the estate settlement can petition the Court for the appointment of an administrator. However, the statutes provide an order of priority for the persons who can actually be appointed.

The procedures of the Surrogate’s Court can be very complex and confusing to family members who are faced with having to handle issues relating to a decedent. It is usually a good practice to obtain the guidance of a New York Administration attorney to assist with these matters. A recent case decided by Staten Island Surrogate Robert Gigante  on December 2, 2014 illustrates the problems that can arise when a person does not obtain the help of an estate lawyer. In Matter of Dinger, a grandson of the decedent petitioned the Court to have himself appointed as estate administrator. This petition was opposed by a daughter of the decedent. The grandson claimed that the decedent owned a cooperative apartment. However, the daughter asserted that she owned the apartment with her mother as joint tenants with rights of survivorship.  Such ownership would have kept the cooperative apartment out of the administration estate since it would have passed automatically by operation of law to the daughter.   Continue reading →

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