New York Probate Lawyer Blog

A Last Will in New York must be created in accordance with the New York statutes. The Estates, Powers and Trusts Law ("EPTL") contains numerous provisions concerning the fundamental aspects of and requirements for a valid Will. For instance, EPTL 3-1.1 states that anyone over 18 years old having sound mind and memory can dispose of their personal and real property by Will. Probably the most important provisions regarding Wills are contained in EPTL 3-2.1 which is entitled "Execution and attestation of Wills; formal requirements". The New York Probate Lawyer Blog has discussed this section of the law in previous posts. EPTL 3-2.1 states the numerous requirements that a Will must meet in order for it to be valid. Among the stated items is that the Will must be signed at the end by the testator, and that there must be at least two attesting witnesses. While the statute contains many more execution requirements, a signed writing with witnesses is fundamental to the validity of a Will in New York.

Estate litigation in the Surrogate's Courts often occurs when there is a dispute as to whether a Will was properly executed. One of the grounds upon which to Contest a Will is lack of due execution. For example, someone objecting to a Will may claim that it was signed by a testator but not validly witnessed because the witnesses did not see the testator sign the Will or the testator did not acknowledge his signature to the witness. Sometimes there are questions as to whether the Will is genuine and if the document was actually signed by the testator. As can be imagined, there are a vast majority of Will Contest Litigations concerning the validity of Wills.

New York law tends to be very strict regarding the enforcement of the statutory requirements. In many instances, a prospective beneficiary may be without recourse where a testator prepares a Last Will to be signed or tells a beneficiary that a Will leaves a certain bequest and, as it turns out, the testator never signs a Will containing these provisions. Despite, the testator's possible intentions, in New York, the failure to comply with statutory rules typically prevents the Probate of the purported or drafted Will. In this regard it is somewhat easy to understand that the strict nature of the law is to present unsigned, unwitnessed or other defective papers from being given validly where the testator is no longer alive to confirm that the defective documents actually express his final intentions.

Notwithstanding the specific requirements of the New York Probate Law, there are recent instances in other jurisdictions where unsigned documents have been admitted to probate and allowed to determine the disposition of a decedent's estate. In a recent post by Cameron Stuart on April 6, 2013 in News.com, it was reported that Irvin Rockman, a former Melbourne, Australia Lord Mayor, attempted to sign a new Will but could not do so due to the seriousness of his illness. Although he died a few days later, the Australian court upheld the validity of the unsigned final Will finding from the evidence that it expressed Rockman's intent.

Closer to home, a New Jersey Appellate Court approved the probate of an unsigned copy of a paper intended as a Will. In the Estate of Richard D. Erlich, 427 N.J. Super.64 (2012), the Court essentially determined that the unsigned paper was sufficiently formal and expressed the decedent's intent and was therefore valid.

Despite these recent examples, the vast majority of Wills admitted to Probate are properly prepared, signed and witnessed. New York Estate Lawyers typically counsel their clients regarding their Estate Plan and supervise the preparation and execution of the client's Last Will and other estate plan documents such as Living Trusts and Advance Directives. When the time comes to Probate a Will, a professionally prepared, signed and witnessed Will can make the Probate Petition Process and Surrogate's Court filing more efficient and expeditious and less prone to a contest by unhappy family members.

Continue reading "New York Wills Need to Be Signed According to Statutory Formalities" »

New York Estate Planning Lawyers are familiar with the fundamentals that form a good estate plan. Preparing and executing a Last Will and Testament provides a written declaration as to the disposition of a person's probate estate. A Will can be made up of various provisions some of which can give specific assets or amounts to named beneficiaries while other parts of the Will may contain bequests in percentages for a number of individuals. Additionally, a Last Will might have clauses that create trusts for minors or provide estate tax planning that might result in many dollars of savings.

In addition to a Last Will, other estate planning documents include a Living Will, Health Care Proxy, Power of Attorney and Living Trusts. All of these testamentary and advance directive papers allow a person to carefully plan their estate and future care by implementing a roadmap reflecting their intentions and naming the Executors, Trustees and Agents who will carry out their instructions.

In many instances, however, a person's attempt to plan their estate may be met with contests and controversy. It is not uncommon for a testator to disinherit a close relative such as a child. It was recently reported in Examiner.com on March 25, 2013 by Joann Scheffler that the famous hair stylist, Vidal Sassoon, disinherited one of his sons. While Vidal Sassoon died in Los Angeles, New York allows a person to completely disinherit a child or anyone else except that a surviving spouse has a right under Estates, Powers and Trusts Law Section 5-1.1-A to elect to take a share of a decedent's estate. Many times when a person who is a distribute (next of kin), such as a child, is disinherited, the result is a contested estate or a Will contest with claims of undue influence or lack of testamentary capacity. A solidly prepared and executed Last Will and estate planning papers are imperative to defeat attacks by disgruntled relatives who expected but did not receive a large inheritance.

The desire to control the disposition of estate or trust assets can sometimes lead to rather extreme actions. A Florida multi-millionaire, John Goodman, recently adopted his 42 year old girlfriend. It appears that Mr. Goodman had been convicted of drunken driving and was facing a prison sentence and civil damages. By adopting his girlfriend it appears that Mr. Goodman would allow her to receive a large share of his trust fund that would have gone to his two other children. In the article by Beth Stebner that appeared in Mail Online on March 28, 2013, it was reported that the children had contested the adoption and that an Appeals Court in Florida voided the adoption as fraudulent and having no purpose.

An even more extreme example of an attempt to control an estate distribution was reported in The Northern Echo on March 27, 2013. It seems that a man who was the sole beneficiary under his parents' Will sought to accelerate his inheritance by first failing to kill his mother and father in a fake road accident and then succeeding in having them die after he shot them in their home. In New York, a person who murders another to receive an inheritance is not allowed by the Courts to profit from their wrongdoing and they are disqualified from receiving their ill gotten gains.

While the above examples of actions to control an inheritance are not common, the important point is that an individual concerned with ensuring the proper disposition of his estate should obtain advice regarding New York Estate Planning. There is really no substitute for preparing an appropriate Will and other planning papers to minimize the likelihood of contests and controversy over an inheritance.

Continue reading "A Good New York Estate Plan is Important to Prevent Contests of a Will That May Occur in Unusual Ways" »

Estate litigation in New York can involve many types of issues. One area of dispute often concerns the rights various individuals may have in a decedent's Estate or Trust. For example, the New York Probate Lawyer Blog has discussed in previous posts issues concerning the determination of a decedent's next of kin or distributees. Kinship Hearings may be required by a Court to decide these issues which often relate to relatives such as cousins or more distant relatives whose relationship may be difficult to establish.

Persons interested in an estate may sometimes challenge the status of a surviving spouse. Questions may arise as to whether a marriage or divorce occurred, particularly where such proceedings occur in a foreign country and record keeping may be poor and valid proof of marriage and divorce proceedings may be difficult to obtain.

Litigation in estates may also arise where a person is either adopted by a decedent or where the decedent gave a child up for adoption and surrendered his parental rights. New York Estates, Powers and Trusts Law Section 2-1.3(a) provides that adopted children have the same inheritance rights as natural children. The statute, however, allows a person to avoid this result by expressing "a contrary intention". Thus, a person who prepares a Last Will or Trust can specifically exclude adopted children, or any other child for that matter, since there is no requirement in New York preventing a person from completely disinheriting a child, natural or otherwise.

In a sort of reverse situation where a parent gives up a child for adoption, New York Domestic Relations Law 117(b) provides, generally, that after an adoption is complete the adoptive child loses his rights of inheritance from his birth parents. Thus, except in certain specific instances, the adoptive child no longer will have any statutory inheritance rights with regard to the family of the biological parents. While these rules may appear on their face to be able to be applied without much confusion, the dynamics of family interaction and monetary considerations often create complicated issues for the Surrogate's Courts to decide.

An interesting example of the interaction of the New York adoptive rights statutes was recently presented in the Estate of John Svenningsen, which was decided by the New York Appellate Division, Second Department on February 6, 2013. and reported in the New York Law Journal on February 8, 2013. In Svenningsen, the decedent ("John") and his wife "Christine" adopted a child from China about one year before John died. The couple then commenced proceedings to formalize the adoption in Family Court, Westchester County and these proceedings were finalized after John died. John and Christine had other natural children. The documents that were involved in the Court dispute concerned various Trusts and John's Last Will. The Will was probated after John died and the adopted daughter ("Emily") was identified in the Probate Petition by Christine as one of John's children.

More than 7 years after the adoption and six years after the Will was admitted to probate, Christine surrendered her parental rights to Emily who was then adopted by another couple. When Emily's new parents discovered by searching court records that John's estate was valued at more than $250 million dollars, they sought an accounting from John's estate Executors and Trustees. The fiduciaries, however, refused to provide an accounting and claimed that Emily had lost her rights to inherit under John's Trusts and Estate pursuant to DRL 117 due to her adoption out of John's family. Both the Surrogate and the Appellate Court found though that Emily's right to benefit from John's Estate and Trusts were not lost by her adoption and that the fiduciaries were required to provide her with an accounting of her share of the Estate and Trust funds.

One interesting aspect of this case is that Emily's new adoptive parents were able to discover the large amount of funds available in John's estate by researching the Court records. There are many cases in the Surrogate's Court concerning Probate, Administration and Accounting proceedings where I have located valuable information to benefit a client by searching the Court records.

Continue reading "New York Estates Include Rights of Adopted Children" »

The New York Probate Lawyer Blog has posted many items concerning Estate Litigation. Litigation in New York Estates in common in the context of a Will Contest where a distributee (next of kin) such as a child is either completely excluded from the Will or left a bequest that is less than expected. Other typical situations are where a Will disposes of an estate to unrelated third parties such as a caretaker or friend. Allegations concerning undue influence, lack of testamentary capacity or duress usually result from such occurrences. Where a Will is contested, the focus is not only on the decedent but also on the witnesses to the Will and the attorney draftsperson who can testify and shed light on the circumstances surrounding the creation of the estate plan and the Will execution process.

However, not all estate disputes concern bequests that emanate from a Will after death. Many times controversy surrounds inter vivos or lifetime gifts that are made by a decedent. Such gifts can be subject to attack based upon similar grounds of lack of capacity. Often, the lifetime gifts appear inconsistent with, and actually can destroy, an estate plan that the decedent set forth in a Last Will or Living Trust document.

Gift litigation can take place in different forms. Sometimes, prior to a person's death, an Article 81 Guardianship proceeding may be commenced due to a person's incapacity. Section 81.29 of the New York Mental Hygiene Law gives the Court the power to revoke transfers that were made by an incapacitated person. In situations that come to light after a decedent's death, an estate fiduciary, such as Executor or Administrator, can seek to recover assets for the estate where the life-time transfer appears to be improper. Proceedings for the turn-over of assets are provided in New York Surrogate's Court Procedure Act Section 2103.

An estate fiduciary has the responsibility to attempt to marshal and collect all of the assets that rightfully belong to the decedent. Demonstrating that a person lacked the capacity to make a certain lifetime gift is not easy. An example of the difficulty in prevailing with such a claim is shown in the recent case of Estate of Magda Cordell McHale, decided by Surrogate Barbara Howe of Erie County on September 28, 2012 and reported in the New York Law Journal on October 9, 2012.

In McHale, a beneficiary under the decedent's Last Will objected to the fiduciary accounting due to the failure to include certain charitable gifts the decedent made shortly before her death. After a hearing the Court concluded that the decedent had both the "intent" and "capacity" to make the pre-death gift.

Cases such as McHale present many difficult issues involving estate settlement and fiduciary responsibility. I have represented individual family members who have felt that such pre-death gifts were the result of undue influence. I have similarly defended individuals who have received pre-death gifts where assertions have been made that such gifts were the result of undue influence. In all cases, it is important to review the history of the decedent, the expressions of intent that may have been made and the relationships been the various parties in order to have a full and clear picture about the proprietary of the disputed transfer.

Continue reading "New York Gifts Made Prior to Death Are Often the Subject of After Death Disputes" »

The fundamental goal of an Executor or Guardian administering the estate of a decedent or Guardianship funds is to collect and protect assets and distribute them on behalf of the appropriate beneficiary. The determination of the identity and value of assets is often very complicated. To begin with, assets may be unknown to the Executor, Administrator or Guardian and they must search through financial records such as tax returns and bank statements to discover necessary information. It is not usual for a fiduciary to discover an asset by finding a bank or brokerage statement that is delivered in the mail.

Not only is discovering assets a challenge during estate settlement, the ownership of the asset may be in dispute. For example, a decedent or an incapacitated person may be the owner of a small business with business partners. If the business records were not properly maintained a dispute may arise as to the percentage or share of the business that was owned by the decedent or incapacitated person. Disputes concerning the ownership of assets can have significant ramifications. First and foremost such ownership will directly affect the amounts that can be distributed to the beneficiary of the estate or Guardianship.

Also, whether an estate has a certain value will impact upon whether estate tax returns must be filed and the amount of estate taxes that must be paid. At present, a New York Estate Tax Return must filed if the value of an estate exceeds $1,000,000. The Federal Estate Tax filing requirement is $5,000,000. Additional estate tax issues such as a marital deduction may be impacted by the nature and extent of assets.

Queens Estate Lawyers, as well as estate lawyers throughout New York, work closely with their clients who are fiduciaries to ascertain and collect assets of an estate. The same holds true for New York Guardianship lawyers.

Estate litigation that generally occurs in the Surrogate's Court may involve many issues regarding property and assets. A recent post in the New York Probate Lawyer Blog on August 24, 2012 discussed a case where the Last Will of Adam Yauch, a founding member of the Beastie Boys, faced probate and interpretation issues due to a handwritten addition to the Will.

Another recent case involving estate assets involves a dispute regarding rights claimed by heirs of one of the co-creators of the Superman character. As reported by Ted Johnson in Variety.com on August 14, 2012, "Ruling Near in Superman Rights Battle", the dispute between a nephew of the co-creator, who is also the estate executor and Warner Bros. is to be decided by a U.S. District Court Judge. While the controversy concerns the interpretation of a prior settlement agreement and copyright law, the outcome will have a tremendous impact due to the apparent value of the Superman promotional rights.

The best course is for individuals to ascertain all of the assets that may be part of their estate and to clarify and resolve all issues regarding ownership rights as part of their Estate Planning. As can be seen from the recent situations discussed above, this is not always accomplished so as to avoid estate contests and controversy.

Continue reading "Estate Administration In New York Can Be Complicated By Disputes Over Asset Ownership" »

Clients sometimes consult a New York estate planning lawyer in order to investigate the possibility of "writing someone out" of a Will. In the eyes of the law, this process is called 'disinheriting' the person. Disinheriting essentially removes any rights or entitlements that a person may expect to receive upon the death of the testator. It is a right possessed exclusively by the testator and one that ordinarily may not be challenged. Sometimes challenges do occur in the form of a Will Contest or Contested Will where a distributee (i.e., next of kin) or other interested party may contend that the Will is invalid. As previously discussed in the New York Probate Lawyer Blog a Will may be contested on various grounds such as Undue Influence, Lack of Testamentary Capacity or Improper Execution.

The person drafting a Will may arrive at the decision to disinherit a relative or other interested person for any number of reasons. Some of the most common reasons to disinherit a person are: (1) the testator no longer maintains a relationship with the person; (2) the testator does not condone the life choices the person has made or is making; (3) the testator feels that the person has sufficient financial resources such that a testamentary gift would be inappropriate; or (4) the testator would rather bequeath the assets to another person to whom they had a closer relationship, or from whom the testator had received the bulk of his or her end-of-life care.

Whatever the reason, the decision to write someone out of a Will should not come lightly. Disinheriting a person often causes tremendous emotional and financial consequences, and can even make the possibility of a Will Contest more likely. After all, if someone's assets are left, for example, to all of the surviving children except one, the excluded child is almost definitely going to feel hurt, saddened, and/or angry. The excluded child may claim that the others unduly influenced the parent to keep him or her out, which may lead to years of bitter disputes and expensive Estate Litigation.

New York Estate Lawyers are aware that all Wills, Trusts and Advance Directives must be explicit as to the terms and beneficiaries. These emotional and legal considerations are, in fact, so persuasive that when the beneficiaries of a Will do not include the testator's spouse and/or children, New York courts sometimes find that the testator meant to have included the missing relative. This means that any document that excludes a close relative from the estate should contain clear, unambiguous language that cannot be interpreted any way other than to express the testator's desire to have that person excluded. such language can facilitate the Probate and Estate Settlement process.

Moreover, local laws still allow certain relatives to collect a portion of the estate assets even if this language is present. For example, in New York, a surviving spouse is entitled to collect either one-third of the estate or $50,000.00, whichever is greater. This occurs even if the spouse is written out of the Will, so that the surviving spouse does not experience a significant financial burden on top of the loss of their loved one. Estates, Powers and Trusts Law (EPTL) section 5-1.1A provides extensive rules that allow a surviving spouse to take a share of a decedent's estate (the "elective share") even if he or she is otherwise disinherited.

Continue reading "New York Estate Planning May Involve Leaving a Relative Out of the Will" »

New York Estate Administration Attorneys are often confronted with questions as to whether a decedent was married at the time of death. The issue of marital status is important since a surviving spouse is a distributee (next of kin) under New York Estate Laws and is afforded certain rights in a decedent's estate. These rights have been discussed in previous posts in the New York Probate Lawyer Blog including a spousal right of election (Estates, Powers and Trusts Law [EPTL] Section 5-1.1 A) and a spousal right to an intestate share of the estate (EPTL Section 4-1.1).

The determination as to a person being married at the time of death involves investigation as to whether there was a valid marriage and, if so, was the marriage terminated by a valid divorce.

New York Estate Litigation may be necessary to provide an answer to these inquiries. As a New York Trust and Estate Lawyer, I often need to investigate such issues by obtaining and examining relevant documents such as marriage certificates and divorce settlements and divorce decrees to advise clients as to the decedent's marital status so that proper estate settlement can occur.

A recent case in the Richmond County Surrogate's Court provides an example of the complicated facts that can be involved in determining marital status. In Estate of Daniel Kelly, decided by Surrogate Robert Gigante on June 18, 2012 and reported in the New York Law Journal on June 29, 2012, the decedent and his spouse entered into a divorce Separation and Settlement Agreement on October 16, 2008. On that same date they appeared in Court and the divorce judge granted the divorce. However, the decedent died on January 7, 2009 and the actual divorce judgment was not signed until March 25, 2009 relating back to the October 16, 2008 Court divorce decision. Based upon the above events, the Surrogate in Kelly found that the decedent was divorced at the time of his death.

As is common in many divorce situations, divorcing parties provide in their settlement or separation Agreements that each waives or relinquishes rights in the others' assets and property including insurance policies and retirement benefits. Problems arise where, despite the waiver of rights, the name of the divorced spouse is not changed or deleted as a beneficiary on the insurance policy or retirement account. Surrogate's Court litigation then becomes necessary to determine the rightful payee of the decedent's benefits.

In Kelly, the decedent's former spouse remained named as a beneficiary of his federal retirement benefits. However, the parties' Separation and Settlement Agreement specifically provided that the divorced spouse waived all rights to these benefits. The Court, after reviewing the parties' divorce agreement and their apparent intentions, determined that the surviving divorced spouse waived all interest in these benefits and that the retirement funds should be paid to the decedent's estate.

Estate Administration can be very complex and involve the review and analysis of many types of papers concerning the decedent's affairs such as deeds, business agreements and divorce papers. All of these documents can impact estate settlement, estate taxes and distribution of assets to estate beneficiaries. I have assisted executors and administrators for over 30 years with all aspects of estate administration and the review of various documents required for successful and efficient estate processing.

Continue reading "New York Estates Are Impacted By Marital Status As of a Decedent's Date of Death" »

Estate Administration in New York involves the determination of the persons who are the estate beneficiaries. The New York Probate Lawyer Blog has discussed in many posts that when a person dies without a Last Will his or her distributees inherit the estate. Where a Last Will has been prepared, the beneficiaries named in the Will are entitled to receive their designated shares of the estate once the Will is admitted to Probate.

An interesting question arises, however, when an estate beneficiary murders the decedent and thereby benefits from the result of a wrongful act. New York Trusts and Estates Lawyers are aware of the decisions by the New York Courts which provide that a person who murders another cannot profit from such wrongdoing and is disqualified from receiving his or her share of the decedent's estate. Recently, the Suffolk County Surrogate's Court was asked to decide a case that involved the above principal of disqualification with an interesting twist. In Estate of Dianne Edwards, decided by Surrogate John M. Czygier on March 28, 2012, and reported in the New York Law Journal on April 13, 2012, the decedent, Dianne Edwards ("Dianne") was murdered by her son-in-law, Brandon. Brandon's wife, Deanna, was the surviving daughter of Dianne, and the sole beneficiary under Dianne's Last Will. Since Deanna was not involved in any wrongdoing, she was not disqualified from receiving her interest under Dianne's Will. However, before the estate funds were distributed, Deanna died intestate and her sole heir and distributee was her husband, Brandon. Therefore, the issue before the Court was whether Brandon forfeited his right to inherit the funds from Dianne's estate that would pass to him through his deceased wife's estate. New York estate attorneys representing Dianne's sister, Donna, claimed that Brandon was disqualified and that Dianne's estate should be paid to Donna as Dianne's sole surviving heir. Essentially, the Court was asked to pass over Deanna's estate interest since such interest was subject to disqualification due to Brandon's wrongful conduct.

The Court decided that Brandon was disqualified to receive the inheritance and that he should not profit from his wrongdoing even if the payment would have been indirectly made through his wife's estate. It is important to recognize from the Court's decision that New York Estate Administration often involves a complex analysis and determination regarding the identity of estate beneficiaries and their respective interests. Previous blog posts have discussed aspects of New York Estate and Trust laws that require proof of kinship or that may result in disqualification due to conduct such as the abandonment of the decedent by a surviving spouse (EPTL § 5-1.2).

Probate Lawyers throughout the state in localities such as Manhattan, Queens and Brooklyn assist their clients who are Executors, Administrators and beneficiaries when confronted by these issues. Estate litigation is often required to resolve these disputes as was the case in Dianne Edwards' estate. Since the Surrogate's Courts are the forum where estate proceedings occur, these Courts are very familiar with these issues and attempt to resolve them through settlement or trials.

Continue reading "New York Estate Cannot Be Paid To a Beneficiary Who Murdered the Decedent" »

New York Estate Litigation can involve many aspects of Estate Settlement. Surrogate's Court proceedings often concern issues such as the validity of a Last Will in a Will Contest. The identity of Estate Distributees may require a kinship hearing.

Controversies regarding the ownership of estate assets also presents many opportunities for litigation by parties represented by Trusts and Estates Attorneys. These disputes may involve claims by the estate that an individual has wrongfully obtained assets that should be turned over to the estate. Conversely, a person may claim that the decedent's estate should return property that it is not entitled to claim ownership of. Whatever the circumstances, the issues can get complex and the time and expense expended by the Estate Executor or Administrator can be quite large. Of course, the best way to avoid these problems is to create a comprehensive Estate Plan before death. Clearly defining and resolving disputes concerning ownership of real estate and business interests while the decedent is alive is much more efficient than having to figure out what the deceased individual did or did not intend regarding these matters after death.

A good estate planning guide would include making a list of all assets and business interests owned. The next step should be to review and examine all of the papers relating to these assets such as deeds, shareholder agreements, stock certificates and operating agreements to determine what issues currently exist or may arise in the event of death that might effect the smooth disposition of these interests. Once these issues or problems are identified steps can be taken to try and eliminate any potential difficulties for administration in the decedent's estate.

Recent cases decided by the New York Courts show that unresolved problems can drastically effect estate settlement and require the assistance of a New York estate litigation attorney. In Sealy v. Clifton LLC, decided by Kings County Surrogate Anthony Cutrona on March 21, 2012 and reported in the New York Law Journal on April 9, 2012, the decedent held an interest in a New York Limited Liability Company that owned investments in real estate. Litigation involved issues regarding the dissolution of the LLC following the decedent's death and the estate's interest relating to such dissolution. In Kanakos v. Kostakos decided by the Hon. Charles J. Markey (Supreme Court, Queens County) on March 20, 2012 and reported in the New York Law Journal on April 12, 2012, an estate distributee brought an action against the decedent's brother claiming that the brother had wrongfully transferred and sold the decedent's real estate prior to the decedent's death. The Court dismissed these claims since the Court action was commenced by the distributee individually instead of on behalf of the decedent's estate as a fiduciary.

As can be seen, estate litigation can be complex and the problems that arise often can be avoided by proper estate planning and guidance from a New York trusts and estates lawyer.

Continue reading "Estate Litigation Often Involves the Decedent's Interests in Real Estate" »

Estate litigation in New York can involve a countless number of issues. The situation that is most commonly recognized is the Contested Will or Will Contest. This type of trust and estate litigation usually gets newspaper headlines such as in the recent case of the Estate of Brooke Astor.

The typical Will litigation occurs in the New York State Surrogate's Court and can involve issues concerning a decedent's testamentary capacity or the proper execution of a Last Will or claims of undue influence that resulted in the disinheritance of close family members.

Another common form of estate litigation relates to the Accounting that an Estate Executor or Administrator must provide to estate beneficiaries when the estate is ready to be distributed. Objections to the Fiduciary Accounting can be filed by the estate beneficiaries concerning an alleged breach of fiduciary duty or the mishandling of assets.

Trust and Estate law firms in New York should be consulted by persons and organizations who have an interest in an estate to obtain advice as to whether appropriate estate litigation should be commenced to protect their rights. In a recent article by Lisa Brown on March 23, 2012 appearing in St. Louis Today, it was reported that Wells Fargo Bank was being sued for breach of fiduciary duty with regard to the loss of millions of dollars in Trust assets.

The New York Probate Lawyer Blog has previously talked about other areas where litigated Court proceedings may be needed. These areas include the following:

(a) A proceeding to compel the production of a Will which is provided by Surrogate's Court Procedure Act (SCPA) 1401.

(b) A proceeding to Prove a Lost or Destroyed Will which is provided by SCPA 1407.

(c) Proceedings to determine distributees with regard to kinship proceedings or cousin cases, SCPA 2225.

(d) A proceeding to compel a fiduciary to file an Accounting which is provided by SCPA 2205.

As a New York estate lawyer I have represented clients in these and other Estate litigation matters. Many times an estate might be involved in Court litigation that results from events that were harmful to the decedent prior to death. A common type of case is a Wrongful Death action where monetary damages are sought due to some occurrence such as an automobile accident that caused the decedent's death. The Daily News in an article by Erin Durkin dated March 16, 2012 reported that the family of a deceased New York City Judge was suing the nursing home where the Judge died claiming that the home was not licensed and had kept the Judge imprisoned there and failed to provide him with proper care.

It is important in every estate settlement to closely analyze whether estate litigation is needed to protect beneficiary and family member interests from fiduciary duty breaches or other problems that may arise.

Continue reading "Estate Litigation Can Be Used by New York Trust and Estates Law Firms for Many Reasons" »

Estate beneficiaries in New York can have rights to receive a share of a decedent's assets in a variety of circumstances. The beneficiary can be named in the decedent's Last Will or, if no Will exists ("intestacy"), the beneficiary may be one of the decedent's next of kin (a "distributee"). As provided in New York Estates, Powers and Trusts Law (EPTL) section 4-1.1 a distributee receives a share of the estate.

There are some situations, however, where the estate share may be forfeited by the beneficiary. For instance, EPTL 5-1.2 provides that interests of a surviving spouse may be lost under certain circumstances including the "abandonment of the deceased spouse" (EPTL 5-1.2(a)(6).

Another example of forfeiture that is recognized by the New York Surrogate's Court provides that a person who murders another forfeits his or her right to inherit from the victim's estate. This doctrine, which prevents a person from profiting from a wrongful act, seem fairly easy to apply where the murderer is convicted by the crime. The recent case of People v. Borukhova, a Queens, New York doctor who was convicted of hiring her cousin to kill her husband, would seem to satisfy the forfeiture criteria. However, all situations are not as clear. What if a person's death was due to alleged neglect or mistreatment and no criminal proceedings were instituted against the alleged wrongdoer. Such a situation occurred in Matter of Karp which was decided by New York County Surrogate Kristin Booth Glenn on September 22, 2011 and reported in the New York Law Journal on October 4, 2011.

In Karp the sister and nephews of the decedent claimed that the "decedent's wife of more than 15 years, intentionally or recklessly caused decedent's death and should therefore forfeit her interest in [his] multi-million dollar estate."

After reviewing the extensive evidence, the Surrogate found that the decedent died due to causes directly related to his own requests for termination of certain medical procedures and that no action on the part of his wife caused his death. Therefore, the Surrogate granted summary judgment dismissing the sister and nephews claim.

Although the claims in Karp were dismissed, the case does raise some interesting concerns for both pre-death care and post-death estate settlement. In Karp the decedent was very ill prior to his passing away. Issues may arise as to what responsibility a beneficiary may have to institute Article 81 Guardianship proceedings to have a guardian appointed to assist a person with health care and other personal needs decisions. When a person appears incapacitated can the failure by a beneficiary to assist him or her result in a forfeiture of an inheritance? Also, if a beneficiary is a health care agent under a Health Care Proxy, can he or she lose an inheritance in the event the health care decisions result in the decedent's death?

Finally, after a person has died, Executors, Administrators and estate beneficiaries may examine the circumstances leading up to death in order to consider whether a proceeding for forfeiture is a viable consideration. Bronx probate attorneys, as well as probate lawyers throughout New York, can review these matters and advise clients as to their rights.

Continue reading "Inheritance in New York Can Be Forfeited Where the Beneficiary Causes the Decedent's Death" »

CNN recently reported about a woman whose aunt gave nearly her entire estate of $300,000 to Family Radio, the non-profit California station that broadcast unsuccessful predictions about the end of the world.

Contested wills in New York probate court can be difficult because they require specific requirements other than a family member feeling slighted by a loved one who passed away. New York Estate and Will Lawyers have handled an untold number of these cases and are well-versed in this area of law. Whether it's contesting a will or planning an estate, it is a good idea to seek professional guidance.

Family Radio's owner, Harold Camping, has grown to celebrity status in recent months with his predictions that May 21 would mark the return to Earth of Jesus Christ, which would lead to a rapture of believers followed by five months of hell on Earth by non-believers before the world ends. His followers traveled across the country in RVs with large signs plastered on the sides, picketed busy intersections and even purchased billboards in foreign countries proclaiming their predictions. Camping has now said he miscalculated the date, which he now believes is October 21.

As CNN also reported, the non-profit organization is operated largely by donations and brought in $80 million between 2005 and 2009, including $18 million in 2009 alone.

Apparently, $300,000 of these donations came from a Queens woman who died in May 2010. As news of the doomsday prediction made news leading up to May 21, a relative of the woman said she and her sister were each left only $25,000 from her aunt's estate and the rest went to Family Radio.

While she believes her aunt was comforted by the radio's discussions about heavenly treasures, she didn't know it was the same group that was working people into a frenzy about the end of the world. Had her aunt lived to see the prediction fail, the aunt may have had second thoughts and might not have left her money to the organization. While the woman said she wasn't in need of the money, other family members could have benefited from a larger bequest.

Sometimes family members can successfully challenge whether the loved one had the mental capacity to make the decisions they made in preparing their end-of-life documents. It's also sometimes possible that executors and others involved in helping a person plan their will can unjustly influence their decisions.

These issues require court action and should only be tackled with an attorney who has the experience necessary to protect your inheritance and the integrity of a loved one's estate.

Continue reading "Doomsday Profit Gets Inheritance In Queens Woman's Will" »

New York Probate Lawyer Blog has already touched on the fascinating case of 104-year-old heiress Huguette Clark, who died recently in New York City.

What makes the situation unique is that Clark, who inherited a giant fortune from her father, a copper baron and one of the richest Americans at the turn of the 20th Century, was a recluse whom people rarely saw. She died at a hospital, where she lived for at least the last two decades, MSNBC.com reports. Now it is likely that her contested will could play out in the news, requiring an experienced New York City probate attorney to sort out the details.

News reports of her reclusive lifestyle, despite owning an estate in Santa Barbera, Calif., a country house in New Canaan, Conn., and a 42-room apartment on Fifth Avenue in New York City in total valued at $225 million -- none of which she lived in -- led to a criminal investigation into how her affairs were being handled by a New York City attorney and accountant. No charges have been filed and both men told news agencies they handled her financial matters according to her wishes.

Last fall, family members went to a New York court asking that a guardian be appointed to look after her assets and well-being after the accountant and attorney banned them from visiting her, MSNBC reports. The attorney has admitted to soliciting a gift of $1.5 million after the Sept. 11 terrorism attacks to safeguard his daughter living in Israel, which may be a violation of New York ethics rules.

Huguette Clark's father was a Montana senator at the turn of the century, who struck it rich in copper and real estate. Huguette was only briefly married and never had children. Although she inherited her father's wealth, according to news reports, she rarely used it. Huguette was secluded in hospitals, even when she was healthy. She was guarded by fake names and paid servants.

Many fear the potential for estate fraud and undue influence where an elderly woman who is fabulously rich is being shut off from family members and giving millions of dollars to the people controlling her estate. The probate process is designed, in part, to ensure that an estate is not plundered.

Prior to death in similar cases, Article 81 of the New York State Mental Hygiene Law can come into play. Adult guardianship in New York applies when family members believe an older family member cannot manage his or her personal or property affiairs on their own or is susceptible to being victimized by others.

It's important to be represented in Article 81 Guardianship matters by an attorney with decades of experience handling these types of cases. This area of probate and guardianship law in Manhattan and throughout the New York City Courts is complex and it is important to consult with an attorney with the knowledge and experience to assist you through the process.

Continue reading "Huguette Clark Case Should Get Interesting If Will is Contested in New York Court" »

The New York probate of a Last Will essentially requires the determination by the Surrogate's Court that the Will is a valid document to provide for the transfer of the decedent's estate. When a Will is admitted to probate, the Will becomes effective and estate assets are distributed as specified by the Will provisions.

The New York Probate Lawyer Blog has discussed that the decedent's distributees or next of kin have the right to object to the probate of the Will. The common grounds relied upon in contests are: (i) lack of proper execution of the Will; (ii) lack of testamentary capacity; (iii) undue influence; and (iv) fraud. Each of these grounds has its particular requirements of proof.

In a recent case concerning the Estate of Mildred Rosasco, decided by Manhattan Surrogate Kristin Booth Glen on April 5, 2011 and reported in the New York Law Journal on April 14, 2011, the Court recognized that an additional ground for a Will contest can be based upon "duress". Duress differs from undue influence in that duress involves more of a threat or performance of a wrongful act that coerced the testator. In Rosasco the Court found that the basis for a finding of duress was present due primarily to physical violence that the estate beneficiary had displayed and the possible fear by the decedent that such violence would re-occur if she changed her Will. Therefore, the Court allowed the case to move forward toward a trial.

Instances of Will contests based upon more typical acts of undue influence are frequently presented to the Court. I have represented clients in these New York City probate matters in counties such as Brooklyn and the Bronx. In another recent case, Brooklyn Surrogate Diane A. Johnson allowed the proceedings to move toward trial where a 92-year old decedent had left his substantial estate to two administrators of the assisted living facility where he had lived during the final years of his life. The case of Estate of Ralph Besdansky, decided on April 12, 2011 and reported in the New York Law Journal on April 15, 2011, seems to present a more classic example of a Will procured through undue influence and abuse of a confidential relationship.

Continue reading "A New York Will Contest May be Based Upon The Duress Of The Testator" »

The New York Probate Lawyer Blog has previously discussed issues regarding the rights of relatives to make burial decisions regarding a decedent. New York Public Health Law Section 4201 entitled "Disposition of remains: responsibility therefore", provides a framework for this decision-making by essentially giving priority to a decedent's spouse and closest living relatives in descending order to determine disposal of the remains.

Notwithstanding the statute, a person may put into place his or her desires by pre-paying for a funeral or cremation, purchasing a burial plot or otherwise expressing in a Last Will certain desires or preferences.

Of course, situations constantly arise when survivors, whether relatives or fiduciaries such as guardians, have conflicting ideas as to the disposal of the decedent's remains. Such was the situation in The Matter of Louis V.P., which was decided by New York State Supreme Court Justice Joel K. Asarch on February 22, 2011. In this case Louis V.P. was determined to be an incapacitated person under Article 81 of the New York Mental Hygiene Law. Guardians for his personal needs and property management were appointed. When Louis died at age 86, his sister, Vita, wanted Louis to be cremated. Vita was also a co-guardian of Louis' property. However, Louis' niece, Grace, who was Louis' personal needs guardian, desired that Louis be buried in the cemetery burial plot that he had purchased approximately 35 years ago.

After considering all of the evidence, the Court noted that the desires of a decedent "regarding the disposition of his or her own remains are paramount...." The Court thus ruled that Louis was to be buried in the burial plot he had purchased since that was the method he apparently intended.

In another recent burial controversy reported in the New York Post on Thursday, March 17, 2011 by William J. Gorta, "Brooklyn heirs burned in cremation flap", a Court ruled that a decedent's third wife could not sue a funeral home and cemetery for having a decedent's remains cremated at the direction of the decedent's fourth wife. Apparently, the family was unaware of the fourth marriage.

Family conflicts can take many forms following a decedent's death ranging from burial directions to Will contests and identification of distributees through kinship proceedings. I have represented clients in New York to help them resolve these issues and protect their family's rights.

Continue reading "New York Decedent's Burial Can Be Complicated By Conflicts Between Family Members and Guardians" »