Although a Will needs to be filed with the Surrogate’s Court and be admitted to probate, in most instances the probate process is not complicated by Will contests or other types of estate litigation. The New York Probate Lawyer Blog has published many articles concerning estate planning, probate and estate settlement.
Another important advantage of preparing a Will is the designation of an executor. The Surrogate’s Court routinely accepts a testator’s nomination unless specific wrongdoing or other impropriety is shown by an objectant. A nominated executor can be a family member or a friend or a professional advisor. Generally, only non-resident aliens are excluded.
]]>In particular, since a decedent may have many children, there is a real likelihood that more than one child may wish to serve as administrator. It is not uncommon in these instances for litigation to occur in the Surrogate’s Court with competing petitions for appointment. Many times, a matter ends up being resolved with the appointment of co-administrators.
When a decedent leaves a Last Will, the provisions of the document may contain the nomination of co-executors. Unless one of the named parties declines or is unable to act, the Surrogate’s Court will appoint co-executors to administer and settle the estate.
]]>At the inception of an estate, a determination must be made as to whether a Last Will and Testament exists which needs to be probated. In the event there is no Will, then letters of administration would be required to settle the estate under the intestacy statutes. The appropriate proceedings must be filed in the Surrogate’s Court. In either case, a fiduciary is needed to have the authority to handle the estate assets. Assets that are owned by a decedent in his name alone pass through the estate. When an asset has a named beneficiary or a joint owner with survivorship rights, these items are distributed directly to the other named party.
A fiduciary, whether an executor or administrator, has various powers and authority regarding estate affairs. The Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ Powers” provides a detailed list of powers. These include powers to take possession of estate property and to sell or dispose of such property.
]]>On its face, it would appear that a determination of incapacity and the appointment of a Guardian would automatically result in a lack of testamentary capacity for such person to execute a Last Will and Testament. However, such is not the case. To begin with, MHL 81.29(b) specifically provides that, where a guardian is appointed, it is not conclusive evidence that someone does not have capacity to dispose of an estate by a Last Will. There are additional considerations as well.
This issue arose in a recent Brooklyn estate case entitled Probate Proceeding, Will of Phylliscita Ismay Samuel, decided by Brooklyn Surrogate Bernard J. Graham on January 11, 2024. In the Surrogate’s Court case, the Court was asked to grant summary judgment and deny probate to a Will, which was executed following a determination of incapacity and the appointment of a Guardian. The party moving for summary judgment relied on this determination to seek the summary rejection of the Will. The Court denied the motion and found that issues of fact existed requiring a trial. The Court’s ruling included recognition that the determination of capacity in a Guardianship case is different from the testamentary capacity required to execute a Will. Article 81 is a test of functionality while testamentary capacity involves just understanding a person’s property, the natural objects of one’s bounty and that the person is entering into a Will.
]]>The procedures set forth in the statute require that a petition be filed. MHL Section 81.08 entitled “Petition” lists the information which must be contained in the Guardianship petition including a description of the AIPs functional ability. A key part of the Guardianship law is that a Court will need to be shown the ability of a person to handle various activities of daily living. These activities include the ability of a person to engage in financial matters and also to handle personal needs such as seeking medical attention, and maintaining a safe and secure living environment. Basic needs such as cleanliness and personal hygiene are important considerations. A Guardianship ensures that a person who is functionally incapacitated and at risk is protected from harm.
The Guardianship statute is also very particular that a Court only impose the least restrictive control by a Guardian. An AIP’s freedom and choice are a paramount consideration for protection by the Court.
]]>Another very important consideration affecting all estates concerns the issue of which jurisdiction’s laws control matters regarding estate administration. The topic referred to is known as “domicile.” Domicile is basically a determination of the place where a person or decedent has their primary home. A person may have many residences but can have only one domicile. This Probate Blog has published previous posts concerning this issue.
For example, a person who dies and has a New York domicile will have his estate controlled by the laws of New York, for the most part. Determining a person’s domicile is not always easy. Someone may have an apartment or house in New York and also Florida, or another state or country. Domicile is a matter of where a person intends to have his primary home. However, there are a number of independent factors which go into the determination, such as where a person filed local taxes, the location of their employment, where their car was registered and driver’s license was issued.
]]>Many times a decedent leaves assets which do not pass through his estate. Instead, items such as joint bank accounts, or other jointly owned assets with rights of survivorship will be transferred by operation of law on death to the surviving joint owner. Additionally, various assets may have a designated beneficiary such as life insurance and retirement accounts like IRAs and 401k plans. Upon death, these items also are paid directly to the named beneficiary.
Problems may arise when a person designates a beneficiary of an asset and the designated beneficiary predeceases the decedent. If there is no designation of a secondary or substitute beneficiary, then an issue arises as to who is the beneficiary of the asset. If it is determined that there is no substitute payee, then the fund may end up as an estate asset to be controlled by a Will or the intestate statutes.
]]>In situations where there is no Will, the procedure is to obtain letters of administration in an intestate estate. The appointment of an administrator is controlled by Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration.” Priority of appointment is given to the closest surviving next of kin, also known as distributees. Distribution of the assets of the estate is also provided for the closest surviving distributees. Estates, Powers and Trusts Law Section 4-1.1 sets forth the priority of distribution. The New York Probate Lawyer Blog has discussed the many issues and aspects of both probate and intestate administration proceedings in the Surrogate’s Court.
One of the basic issues in any estate case is determining the identity of a decedent’s distributees. Figuring out a person’s next of kin, particularly in an intestacy case, directly affects the appointment of the administrator and the distribution of assets. Next of kin identity may be very hard to determine. A decedent may not be survived by any close relatives such as a spouse or children. Also, a person may not have had much contact with extended family for decades, and family members may reside in other states or countries. Where kinship is unclear, the Court may need to engage in estate litigation and require a kinship hearing. Since these matters often require testimony and family history documents such as death, birth and marriage records, a professional genealogist may be needed.
]]>First and foremost are the provisions contained in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.” This statute sets forth the various requirements for the signing of a Will. There is a requirement that the Will be written, that there be at least two (2) attesting witnesses and that the Will be signed by the testator at the end.
The basic requirements found in the statute ensure that a decedent’s wishes which are expressed in the document are legitimately preserved. When a person dies it is apparent that he is no longer around to certify and authenticate the dispositions that he set forth in the document. The New York Probate Lawyer Blog contains numerous articles explaining and discussing the probate process. New York probate and estate lawyers are familiar with the estate laws.
]]>During the course of estate settlement, a fiduciary such as a trustee or executor or administrator will need to contend with issues surrounding the decedent’s ownership of these interests. It may be that a property is occupied by a third party or family member who needs to be evicted. Thus, estate litigation in the Surrogate’s Court or other Court may need to be commenced. Another problem may involve discrepancies in the title of ownership and claims by third parties against the property interests. Various liens in the form of judgments or unpaid taxes or unpaid mortgages may complicate the estate administration.
It is very common that the estate fiduciary will decide to sell the property interests and distribute the net proceeds to estate beneficiaries. The ability of the fiduciary to sell property may be limited or constrained based upon the existence of a Last Will or the authority provided to a fiduciary by the Surrogate’s Court in letters testamentary or letters of administration.
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