New York Probate Lawyer Blog

Under New York Law, spouses enjoy protections regarding rights to share in the other spouse's assets. While both spouses are alive, divorce laws such as "equitable distribution" provide a framework for the disposition of assets between spouses. However, when one spouse dies, rules provided by the New York Estates, Powers and Trusts Law and the Surrogate's Court Procedure Act come into play. Aspects of other statutory rules also must be considered between spouses, both alive and deceased, such as property concepts of ownership in the form of joint ownership or tenancy by the entirety.

During the course of a marriage, spouses may prepare Last Wills, as well as other papers such as pre-nuptial agreements or separation agreements. These agreements may obligate a spouse to provide certain benefits for the other spouse such as maintenance (i.e., alimony) and a paid up life insurance policy. Generally, these agreements are considered contracts and if a spouse dies without satisfying the obligations under the agreement his estate may be found liable for payments he failed to make during life. Additionally, these pre or post martial agreements can provide for a waiver of rights to share in the other's estate or to act as executor or administrator of the estate.

During estate settlement the requirements of these agreements must be reviewed and considered. Experienced probate attorneys representing executors and administrators typically review these documents so that the estate fiduciary can fully understand the impact the decedent's lifetime agreements will have on estate administration.

Two recent Surrogate's Court cases demonstrate how such agreements can affect the final settlement of an estate. In the Matter of Griffin, decided by Monroe County Justice Edmund A. Calvaruso on September 29, 2011 and reported in the New York Law Journal on October 24, 2011, the decedent had signed a Separation Agreement with his wife prior to death. When the decedent died he and his wife owned a house as tenants by the entirety. The agreement had provided that the house should be sold and the sales proceeds divided between them. Among other issues decided by the Court, it was determined that notwithstanding the agreement, following the decedent's death since the parties were still married, the surviving spouse was entitled to the full proceeds from the sale of the house. The house was not sold until after death. Since the house was still owned by the decedent and his wife as tenants by its entirety at his death, title to the entire house passed by operation of law to the surviving spouse as surviving tenant by entirety and the wife's property rights as a tenant by the entirety were not terminated by the separation agreement.

In Matter of Piyavan Chantarasmi [a/k/a Matter of Bruan], decided by Westchester Surrogate Anthony A. Scarpino on January 26, 2012 and reported in the New York Law Journal on February 23, 2012, the decedent had signed a Pre-Nuptial Agreement. The agreement provided among other things that he would leave 70% of his estate to trusts to be set up for his children in his Will. The decedent died Intestate (without a Will), due to an accident and, therefore, did not establish the trusts as required by the pre-nuptial agreement. The Court allowed the Estate Administrators to draft and create the trusts for the children as was required by the agreement.

Griffin and Chantarasmi both show that Estate Executors and Administrators must review all agreements and obligations relating to the decedent so that estate administration is properly handled. I have represented estates where these types of agreements had been entered into by the decedent and have advised the estate fiduciaries regarding the implications of these matters.

Continue reading "New York Estates May Be Affected by Marital Agreements" »

Estate Planning Attorneys in Nassau and Westchester, as in all other New York Counties, are well aware that the documents they prepare for clients must have clearly worded provisions.

A Last Will is a testamentary statement as to where and how a decedent's assets are to be disposed of. In its most fundamental form a Last Will can set forth a number of dispositions. There can be a statement that certain individuals or entities are to receive a specified property or a specified amount of money.

Additionally, the residue or balance of the estate can be disposed of in any number of ways such as by percentages to a number of recipients. Trusts that are created in the Will are called testamentary trusts. These trusts only come into being after the Will is admitted to probate and the trust is funded. InterVivos Trusts are created outside of a Will and can begin to function as soon as they are prepared.

A New York Will also contains provisions for the appointment of Executors, as well as Trustees of any trust created by the Will. Also, Guardians for minor children can be nominated in a Last Will. Beneficiaries and alternate beneficiaries that are named in the Will should be accurately identified by their relation to the decedent and their names should be correctly spelled.

The utmost care is required so that the Will provisions are clearly worded. Such clarity is essential so that the decedent's intent can be carried out by his or her Executor and Trustee. Where provisions in a Will and/or Trust are confusing or ambiguous, Executors, Trustees, beneficiaries and the Court are left to try and decipher what the decedent really meant and desired regarding the disposition of property. If the interested parties cannot agree as to the document's meaning then a Court must construe the intent of the testator. In a proceeding for the Construction of a Will the Court does not rewrite Will provisions. Instead, the Court attempts to carry out the intentions of the decedent. Construction proceedings can involve complex issues for probate lawyers and their clients who are Executors and estate beneficiaries.

A recent example of confusing language requiring Court clarification occurred in the case of Matter of Winifred Gooding Brice, decided by Surrogate Edward W. McCarthy III, (Surrogate's Court, Nassau County) on December 13, 2011 and reported in the New York Law Journal on January 10, 2012.

In Gooding, the decedent had executed a Last Will which was followed by the decedent's signing six Codicils. A Codicil is essentially an amendment to the original Will. A question of construction arose because there was a contradiction between two codicils concerning the time a certain trust was to terminate.

Gooding shows that in order to avoid inconsistencies between multiple Codicils and a Last Will, it would be preferable to rewrite and revise the entire Last Will and incorporate all of the modifications into a single document that would not be confusing. By re-doing the entire Will, estate planning and estate administration can be streamlined.

Continue reading "New York Wills Need to Clearly State a Testator's Estate Plan" »

New York Guardianship proceedings for incapacitated persons are governed by Article 81 of the Mental Hygiene Law (MHL). The New York Probate Lawyer Blog has discussed in numerous posts the powers and duties of a Court appointed Guardian.

In many instances, a petition for Guardianship is filed with the Court because the Alleged Incapacitated Person ("AIP") appears to be the victim of physical or economic abuse. The Guardianship proceeding will require the appointment of a Court Evaluator and/or Attorney for the AIP. These appointees and the Court itself will review whether any wrongdoing is being perpetrated. Sometimes, a government agency called the New York State Mental Hygiene Legal Service is appointed to protect the AIP's interests. MHL Section 81.29 entitled "Effect of the appointment on the incapacitated person" provides the Court broad powers to remedy situations where the AIP has been taken advantage of. For example, the Court can void a contract or a power of attorney entered into by the AIP if the Court finds that the AIP lacked capacity when such papers were signed.

Even though the statute gives the Guardianship Court broad powers to remedy wrongdoing, MHL Section 81.29(d) specifically provides that the Court cannot "invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person." Thus, if the AIP signs a Last Will at the time he or she is found to be incapacitated while still alive, any objection or Will Contest to the validity of the Will must wait until the AIP is deceased and the Will is offered for probate.

In this regard, it is interesting to note that a finding of incapacity in a Guardianship proceeding does not mean that a person lacked the testamentary capacity to execute a Last Will. MHL Section 81.29(b) specifically provides that "subject to subdivision (a), the appointment of a guardian shall not be conclusive evidence that the person lacks capacity for any other purpose, including the capacity to dispose of property by will".

Since a Last Will cannot be challenged until a person dies, many issues involving the disposition of the AIP's estate are fought over only after the AIP dies. Estate settlement and estate administration becomes the new battle ground for problems that could not be settled in the Guardianship.

The Courts clearly recognize that while the overlap of controversies may exist, the paradox of a finding of incapacity for Guardianship cannot forestall an incapacitated person's ability to sign his or her Will.

This circumstance was clearly shown in a recent case entitled Matter of Biaggi, decided by Justice Alexander W. Hunter, Supreme Court, Bronx County, on November 10, 2011 and reported in the New York Law Journal on November 28, 2011. In Biaggi, objections were filed to the action of the Guardian for retaining an attorney to assist the incapacitated person with drafting and executing a new Last Will. The Court found that the Guardian acted appropriately and noted that "allegations of testamentary capacity and undue influence are matters that should be more appropriately be brought up, if necessary, post-mortem and not at this time before this Court."

Continue reading "New York Guardianship and Estate Settlement Often Cross-Paths" »

Probate of Wills in New York requires the compliance with many provisions that are part of the New York Estates, Powers and Trusts Law ("EPTL") and the Surrogate's Court Procedure Act ("SCPA").

First and foremost, EPTL Section 3-2.1 entitled "Execution and attestation of wills; formal requirements "sets forth the statutory mandates that must be followed for a Will to be validly signed. The statute sets out a number of requirements such as: (i) the Will must be signed at the end by the testator (3-2.1(a)(1); (ii) there needs to be "at least two attesting witnesses" (3-2.1(a)(c)(4) ); and (iii) the signature of the testator must be made in the presence of or acknowledged to the witnesses (3-2.1(a)(c)(2).

The formal requirements of the statute are quite extensive and variations or questions that may occur regarding compliance with these formalities often result in controversy and litigation. For example, what happens if all the steps are taken to prepare and execute a Last Will but the original of the Will cannot be located after the testator's death. SCPA 1407 entitled "Proof of lost or destroyed will", provides the process by which a Will can be admitted to probate under such circumstances.

In order for the probate process to be completed, the Court requires that the Attesting Witnesses provide testimony confirming that the signing of the Last Will complied with the formalities of law. This testimony can be live or, as is most often done, by sworn affidavit. However, what happens when one or more of the witnesses are deceased or cannot be located when the Will is being probated. SCPA 1406 entitled "Proof of will by affidavit of attesting witness out of court", allows the witnesses affidavit to be used to establish the validity of the Will. This affidavit is usually made when the Will is signed and is known as a "self-proving" affidavit.

It is a common misconception that preparing and signing a Last Will is a relatively simple matter. As appears from the brief discussion herein and other posts in the New York Probate Lawyer Blog, failure to comply with the statutory rules for Wills can result in battles in the Manhattan Surrogate's Court, or other Surrogate's Courts throughout the State. The decedent's intentions regarding an estate plan can be disrupted or destroyed. The rules and procedures, although complex and sometimes appearing to be archaic, are meant to provide certainty as to a decedent's last wishes and prevent fraud and deception.

A recent case in the New York State Supreme Court, Onondoga County, Castor v. Pulaski, decided by the Honorable Anthony J. Paris on December 14, 2011, shows why the many safeguards to the probate process are necessary. Castor is an action to recover damages for fraud engaged in by individuals who attempted to defraud the Surrogate's Court by filing and attesting to the validity of a fake Will. The plaintiff, who was the decedent's son, actually withdrew his objections to the Will in view of the witness affidavits which were, unbeknownst to him at the time, false.

The Court granted compensatory and punative damages against the defendants and noted in its decision: "Based on Defendants' track record, their testimony is totally incredible except for those portions wherein they admit that they willingly and voluntarily falsely acknowledged Mr. Castor's execution of his Last Will and Testament when, in fact, they did not so witness his signature and he did not request them to sign as witnesses. They also admit to their subsequent execution of the Attesting Witness Affidavits on November 23, 2005, knowing that the information contained in said Affidavits was not true."

The preparation, execution and probate of Wills, as well as proper estate administration, is complicated and involves serious consequences. Due diligence by all individuals and family members, as well as professional guidance from estate and probate attorneys, is essential.

Continue reading "New York Wills Probated After Validity is Established" »

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" »

The New York Probate Lawyer Blog has reviewed many instances and issues regarding estate litigation, Will contests and disputes among heirs and beneficiaries. Sometimes controversies begin before a person dies when they become ill and incapacitated. Relatives and friends can abuse or breach fiduciary obligations in attempting to control a person's finances before death. Guardianship Proceedings, which are provided by Article 81 of the New York Mental Hygiene Law, are just a rehearsal for the battles that occur concerning assets and Wills after death. Westchester and Manhattan Guardianship attorneys, as well as guardianship lawyers throughout New York, have seen these disputes time and again.

An example of such pre-death contests appeared with regard to the actress Zsa Zsa Gabor. As reported in an article in Estate of Denial by Andy and Danielle Mayorals dated June 25, 2011, pre-death fighting between Ms. Gabor's husband (her ninth) and daughter revolved around each arranging for her to re-write her Last Will and the sale of her home and personal property.

Even after death occurs controversy regarding a decedent's estate and affairs can go on for years. It was recently reported by Daniel Kreps in Amplifier on May 6, 2011 that the estate of the late rock and roll star, Jimi Hendrix, was commencing a lawsuit over the ownership of master recordings made during concerts in 1969. Jimi Hendrix died on
September 18, 1970.

Another pending lawsuit involving the ownership of rights to the musical legacy of country singer, Jim Reeves, was reported in an article by Anita Wadhwani in The Tennessean on November 2, 2011. Jim Reeves died in 1964. However, none of the above appear to rival the almost daily notoriety surrounding the death of Michael Jackson.

A recent article in the AARP Bulletin by John F. Wosik on October 19, 2011 entitled "A To-Do List for Estate Planning" provides a brief guide for some estate planning considerations that may help avoid disputes. Among the items discussed are:
(1) A "Health Care power of attorney" known as a Health Care Proxy in New York. This document will specify the persons who can make health care decisions for you in the event you are unable to do so yourself.
(2) A "Financial power of attorney". This document will specify the persons who can make property management decisions for you when you are unavailable or unable to do so. The terms of the Power of Attorney can be limited and specifically defined according to your desires.
(3) "Wills and Trusts". These documents provide the foundation of your instructions and reflect the manner in which you want your property disposed of after death. Additionally, proper estate planning through Will and Trust provisions may provide appropriate tax benefits.

Consulting a good New York Estate planning and Guardianship attorney may help avoid the Surrogate's Court litigation that seems to forever encompass some estates. In view of the complexity of issues often involved in property and business ownership, breaches of fiduciary duty and beneficiary rights, disputes among family members and third parties are probably inevitable.

Continue reading "Estate Disputes Should Be Avoided But Sometimes Never End" »

There have been a number of previous discussions in the New York Probate Lawyer Blog regarding disputes that arise when a decedent transfers assets to others prior to death. Such transfers are sometimes made to family members or to non-relative third parties. The problems and disputes that arise from such transfers basically involve whether the transfers were intended by the decedent to replace dispositions that were carefully set forth in a Last Will or Trust. In many instances, these lifetime transfers do not reflect the same estate plan as stated in a Last Will and often benefit one or more beneficiaries at the expense of others.

For example, a person may have bank funds in his or her name in a bank account that is bequeathed equally to a number of beneficiaries named in a Last Will or Trust. The person may have spent many hours reviewing his estate plan with his Probate Lawyer before finalizing the documents. However, prior to death, the person may add one of the beneficiaries to the bank account either as a joint owner or as a named beneficiary. In such a case, when the person dies, ownership of the bank account will automatically be in the named beneficiary and the account funds will not be included in the decedent's estate to be distributed to all of the beneficiaries designated in a Last Will or Trust. The question that arises is whether the decedent put the beneficiary's name on the account with the intent to benefit only the beneficiary or whether the name was added due to undue influence or without an understanding that such action would change the decedent's estate plan.

Such disputes are common in Surrogate's Court litigation throughout New York including the Bronx and Westchester Counties. Executors and Administrators are very often faced with the estate settlement task of attempting to recover assets for the estate that have been transferred to others.

A recent case in the New York County Surrogate's Court, entitled Matter of Appleby, was presented to Surrogate Kristin Booth Glen. In a decision dated September 12, 2011 and reported in the New York Law Journal on September 26, 2011, the Court was faced with a number of issues that arose concerning funds that a decedent allegedly loaned to her son prior to her death. The decedent's executor attempted to have the son's estate (the son died shortly after his mother) repay these funds to the decedent's estate. The son's executor had sought to have the case dismissed on various grounds but the Court, for the most part, decided that issues existed that needed to go to trial. The Court found that questions existed as to whether the monies given to the son were enforceable loans to be paid back to the decedent's estate.

It is always an important aspect of estate planning, to update and review not only the identity of assets and beneficiaries, but the manner in which assets are owned (ie, individually or jointly, etc.) and the impact such ownership may have on estate distribution.

Continue reading "New York Estates Involve Disputes Regarding Lifetime Transfers" »

Administrators and Executors in New York, sometimes referred to as estate fiduciaries, have many powers and responsibilities. The New York Probate Lawyer Blog has discussed many of these aspects of estate settlement including the identification and collection of a decedent's assets and the payment of expenses, debts and taxes.

Reference has also been made previously to the common situation that occurs upon a person's death when decisions need to be made concerning burial and funeral arrangements. When preparing a Last Will, a person can set forth provisions that direct the manner in which he or she is to be buried. For example, a Last Will can state that the person wants to be cremated or to be buried in particular ceremonial manner. Although such directions in a Last Will can be enforced, they are problematic since a Will may not be looked at or even located until after a person's funeral and burial take place. Moreover, the validity of a Will and the appointment of an estate fiduciary may not occur until many weeks or months after death.

When discussing burial issues with clients, I typically suggest that a good estate plan includes a pre-death discussion of all funeral and burial desires and arrangements with the close family members or friends who would be most likely to make certain that the decedent's instructions are followed. However, disputes can and do arise regarding the control of a decedent's remains and its disposition. Section 4201 of the New York Public Health Law attempts to limit such disputes by providing a list of the individuals who have priority to control the disposing of a person's remains. First and foremost, the statute provides that priority is given to a person who is named in a writing that is signed as provided for by the statute. Absent such designation, a spouse or domestic partner and surviving children are given primary authority. The statute also provides in paragraph 2(a)(viii) that "a duly appointed fiduciary of the estate of the decedent" may control the disposition of remains.

Many different controversies can arise concerning a decedent's remains. In a recent case, Freiman v. County of Nassau, decided by the Hon. Thomas Feinman (Supreme Court, Nassau County) on September 23, 2011 and reported in the New York Law Journal on September 30, 2011, the Executor of an estate sued the Nassau County Medical Examiner ("ME") claiming that the ME performed an autopsy without consent from the Executor and contrary to Public Health Law Section 4210. The Court dismissed the case finding that the limited extract of a blood sample was not an autopsy and was performed with consent.

As shown by the Freiman case, disputes regarding a decedent not only involve such common proceedings as Will Contests and kinship disputes, but can relate to events occurring immediately upon death involving the disposition and handling of a decedent's remains.

Continue reading "New York Executor or Administrator May Have Rights Regarding The Decedent's Remains" »

The New York Probate Lawyer Blog has talked about many situations involving the probate of a decedent's Last Will or the intestate administration of an estate where there is no Will. These proceedings comprise the most basic avenues for a decedent's estate settlement.

However, even more fundamental, and as a preliminary step to commencing such proceedings, a determination needs to be made as to whether the New York Surrogate's Court is the appropriate Court to initiate the case. If New York is not the proper forum, the Court will not allow the proceeding to be filed. It may be that another state (i.e., Florida, New Jersey), may be the proper place to file and administer the estate proceedings.

Choosing the proper forum or Court is not always an easy task. This choice of forum begins with a finding of the decedent's "domicile". Domicile is an extremely important issue since it will not only affect the location of the Court that is appropriate to process the decedent's estate, it may very well determine the State law that controls the issues surrounding estate administration such as spousal and kinship rights. Domicile also affects many other issues such as taxation.

Domicile essentially refers to the place that is considered a person's primary home. A person can have many different residences around the world but only one primary home or domicile. Domicile is defined in the New York Surrogate's Court Procedure Act Section 103 (15) as "A fixed, permanent and principal home to which a person wherever temporarily located always intends to return."

Domicile can be difficult to determine where a person has residences in more than one state or country and divides his or her time between these locations. Among the factors that a Court reviews in deciding an issue of domicile are where a person files state and local income taxes, and where a person has a driver's license, voting registration, and other social and business connections.

As noted, domicile is important because it may determine various rights. For example, a decedent who is a domiciliary of New York will be subject to New York statutes for the purposes of determining the decedent's distributees or next of kin. Statutes of a different state, for example, New Jersey, may differ from those in New York and specify different individuals or interests in a decedent's estate. The result may cause variations in amounts inherited or even rights to an inheritance.

A recent example of the importance of determining domicile was seen in Matter of Ranftle, decided by New York County Surrogate Kristin Booth Glen on September 14, 2011 and reported in the New York Law Journal on September 23, 2011. In Ranftle a question arose concerning whether a decedent was domiciled in New York or Florida. The importance of this question centered around the fact that unlike New York, Florida would not have recognized the decedent's same-sex marriage that took place in Montreal, Canada. Therefore, if Florida law controlled, the decedent's spouse may have lost inheritance rights in the Court proceedings. After an extensive review of the numerous factual contacts the decedent had both in New York and Florida, Surrogate Glen determined that the decedent was a New York domiciliary.

As a New York Probate attorney I have reviewed many cases with clients where an initial determination must be made as to the proper Court in which to commence a probate or intestate administration proceeding. Additionally, a thorough review of a client's domicile is imperative when preparing an estate plan so that the provisions of a Last Will or Trust will be in accordance with the relevant State laws.

Continue reading "New York Probate and Administration Depend Upon the Domicile of a Decedent" »

A new study by AARP, university research and the government shows that fathers are less likely to die of heart-related illnesses than men without children, the Associated Press reports. The study is considered the largest ever to look at fertility and mortality and involved 138,000 men nationwide.

While this may be good news for dads, genetics and lifestyle must also be factored into studies about heart health. This study may present a good time for fathers to discuss heart health, it also can be used as an opportunity to talk about New York estate planning.

New York probate lawyers have seen many older New Yorkers struggle at the end of their lives, perhaps after diagnosis of an illness or disease or following an unexpected accident. Too often, seniors may wait until dementia or other illness robs them of their ability to plan. .

Men in America suffer from heart problems. Long hours earning a living and raising a family can take a toll. Taking the time to ensure loved ones are protected can bring peace of mind. Thus, men in their 30s, 40s and 50s should have plans in place. The process does not have to be complicated. And not just those with significant assets need estate plans.

The large-scale study found that marriage, having many friends and even having a dog as a companion, can lower the chances of heart problems and cardiac-related deaths. And the study shows that having children may be motivation for fathers to take care of themselves physically.

Researchers found a link between infertility and later health problems. Testosterone levels can affect good cholesterol, the article reports.

But the study also had some caveats:

• Researchers couldn't calculate how many in the study were childless by choice and not because of infertility.


• They didn't study the men's partners' infertility problems.


• They didn't calculate blood pressure or cholesterol numbers.


• Fewer than five percent of participants were minorities.

For the fathers, New York estate planning is critical in order to ensure their children are properly taken care of when they pass on. When a person is nearing death, they don't want the added stress of worrying about where their money will go or if their children will be left with valuable or sentimental heirlooms.

For the childless, the need is no less important. Even if there aren't children to leave assets to a spouse, siblings, other family members, friends or even a trust established to support philanthropic desires can result from careful planning.

Don't wait until major health problems have struck to take the initiative and plan out your will or estate in New York. Have peace of mind and focus on more important things in your time of need.

Continue reading "AARP: Dads Have Fewer Heart Problems, But Still Must Plan Estate in New York" »

As the New York Probate Lawyer Blog recently reported, women in New York and elsewhere are resistant to planning their estate. A recent Forbes article encourages women to take the necessary steps.

While women aren't alone in their procrastination of estate planning in New York, they seem to take an approach more lax than their male counterparts. While no one likes to plan their death and what will happen to their assets after, it is a critical aspect of adulthood. Many women take to the task once they realize its importance as, in many ways, they are more organized and more conscientious -- particularly when it comes to providing for children.

No one really wants their assets dealt with by a judge and other strangers. And if you have children, they must be taken care of, with specific plans to help them live their lives without the aid of parents. Yet a recent survey found that 47 percent of women were concerned with their weight, compared to 43 percent who care about protecting their assets and contacting an experienced New York City Probate Lawyer to help them get their affairs in order.

A new Forbes article, by the same author, looks at the topic again, questioning why woman are so resistant to taking the matter into their own hands. To be fair, men are not exactly lining up at the doors of estate planners. It's a problem for both sexes. A reluctance to deal with death is just part of it. Another is the mistaken belief that only the rich need such services. In reality, proper estate planning and making the most out of your legacy is even more important for those middle class families of moderate means.

By most accounts, the average person believes death is a far-off event that can be addressed at a later time. But the reality is that these estate matters must be handled now, with sound mind and with the best interests of the person and their loved ones in mind.

As the author of the article states, women with children are unlikely to plan their estates. Yet the 10-year anniversary of the Sept. 11 attacks should remind us all that planning is essential, even when chances of death seem remote. And older women are even more behind in their estate planning. Because they tend to live longer and marry older spouses, they are more likely to be widowed and must make decisions on what will be left to survivors.

Here are a few estate-related questions for women to consider:

What's the difference between a will and a living trust? Both a will and living trust are documents able to transfer assets, but only a will can be used to appoint a child's guardian. A living trust can hold assets while you are alive, which can have a number of benefits.

Whom to trust? The power of attorney is critical and should appoint a person you trust, like a family member or close friend.

Who will take care of the kids? Without proper planning, children can be thrust into a custody battle or maybe no family members will be willing to step up and take care of your child. That's why filing formalized documents can clear the air and decide who will care for the children subject to Court oversight.

What is in savings? Make sure there is money set aside to pay for funeral costs, burial and other short-term related costs because often, joint money or retirement accounts can be frozen for some time.

Continue reading "Do Women Care Less About Estate Planning in New York?" »

A recent Forbes.com article by a Forbes Senior Editor makes the case for why women should be taking a more thorough approach to wills and estate planning in New York and throughout the country.

The article leans on a recent survey by EZLaw, which the New York Probate Lawyer Blog commented on recently. According to the survey, which was conducted with a random sampling of Americans about the importance of wills and estate planning, women were more concerned with their weight (47 percent) than with the protection of their assets (43 percent). All told, the majority of those surveyed believe that having a will is important, but few have the documents in place.

In the last half a century, women have made many positive strides in gaining rights, working toward equality in the workforce and in their ability to join the hierarchy of many of the country's Fortune 500 companies. For this reason and for many others, women, just like men, must take an interest in protecting their assets. But this is best done with the knowledge and experience of a New York City Estate Planning Attorney, who can guide clients through the complex area of estate planning, wills and trusts.

"Does this mean women have more will power when it comes to their waistlines, than when it comes to estate planning?" the Forbes article's author asks. "If so, it's a shame, because estate planning affects women profoundly."

According to the article, among Americans 65 and older, 42 percent of women, compared to 14 percent of men, are widowed. Women are expected to live longer. This longevity combined with a woman's tendency to marry older spouses and earn less over the span of their lifetime, means they could suffer the consequences if their estate isn't planned properly.

"Perhaps worst of all is how a lack of planning can affect families of young children," the author writes. "Without a will, if your children are minors and you were a single or surviving parent, a court will appoint a guardian for them."

The author implores women to have the talk about estate planning not only with their spouses, but also with their adult children and their own parents.

With spouses: Relating the end of life to current events, a person they know who's sick or even wanting to provide for the kids may be ways to bring up this less-than-attractive topic of conversation. But either way, it needs to be done. Estate planning isn't just a when-I-die necessity, it should be done so that the individual will be taken care of if their health fails at any stage of life.

With adult children: While a parent to an adult child has no obligation to change their plans based on their kids' preferences, talking it over can help. Explaining the decision rather than making it a surprise upon death can save lots of frustration and sibling rivalry down the road.

With your parents: This can be difficult because some people would view this as being greedy, but it is important to talk with your parents if you notice a decline in mental capacity later in their life. Once they lose competence, they can't make binding commitments, so estate-planning documents must be handled before that happens.

Continue reading "New York Women Must Plan Out Their Estates" »

Most would agree that the recent death of 27-year-old singer Amy Winehouse was tragic. Winehouse continually battled drug and alcohol addiction as her music made millions -- including a song called "Rehab."

But she got her will right MSN Money reports. It leads a New York Estate Planning Lawyer to believe this is a perfect example of why people of any age must consider putting together a will. These types of plans do not just apply to people who are older, but people of any age, regardless of financial status. In order to make sure your assets go to the people you want, a New York will must be prepared.

According to the article, Winehouse's revised will reportedly prevents any of her fortune -- about $16 million -- from going to her ex-husband. Instead, the money will go to her father, mother and older brother.

Under English law, a divorce doesn't undo the presumption that the natural inheritor is the spouse. Without a will, in England, divorcees would inherit assets. However, in New York, Estates, Powers and Trusts Law section 5-1.2 disqualifies a spouse from inheriting if the parties were divorced. Under New York intestate laws, a person's spouse and children typically inherit assets. Thus, people who may have a poor relationship with the decedent may benefit, while others who were close to the person may receive nothing. It's best not to leave these issues up to the state. Setting up a clearly laid out will can avoid any confusion and can make sure the person's desires are carried out after death.

Preparing a New York estate plan involves many considerations particularly in the case of a divorce. While the New York statutes and a valid Last Will may exclude a divorced spouse, other assets that have designated beneficiaries should also be reviewed and revised. These include retirement funds and jointly owned interests. An example of the problems caused by incomplete planning were displayed recently in the case of an attorney who divorced his wife and had named her as the beneficiary of his Individual Retirement Account during their marriage. As reported in insurancenewsnet.com on August 2, 2011, following the divorce the attorney never removed his ex-wife's name as the beneficiary of his IRA. Ultimately, the account was paid to the ex-wife. Adding insult to injury, the IRA contained proceeds from another retirement account that was rolled over into it.

According to an AARP poll, more than one third of Americans over 50 lack a will, living trust or power of attorney. Most people consider death a long, down-the-road event. But as we see every day, death can happen at any time. It is critical to put plans in place to make sure finances are in order after death.

MSN calls parents of minor children "negligent" if they don't have these documents in place. While people don't want to plan their own demise, setting up a will saves the children from a potentially ugly child custody battle as well as providing guidance concerning the manner in which the children are to be taken care of after the parent's death.

While do-it-yourself estate planning web sites exist, the MSN article points out that they include outdated information, lack of customization and too little flexibility. They also leave out certain topics, such as creating a special needs trust.

The bottom line is that estate planning requires some effort, but people lack motivation to accomplish this simple step in their lives, thinking they won't need to do it for a while. We are a nation of procrastinators in this regard. But you can save your family members a lot of stress and frustration by establishing a will or trust now, before it's too late.

Continue reading "In Death, Amy Winehouse Appears Clever After Smart Will and Estate Planning" »

The New York estate settlement process involves many different requirements and responsibilities. An Executor is the person or institution appointed by the Surrogate's Court to administer or carry out the terms or provisions in a Last Will. The responsibilities of a person named as Executor begins immediately after the death of the decedent.

An Executor's first duty is to file the Will with the Court and prepare a petition for probate. The Court must officially appoint the Executor before he or she has authority to handle estate affairs. While information provided in the probate petition is the same whether filed in Nassau, Suffolk or Queens counties, it may not always be easy to provide the required data. Among the items needed to be completed is a list of the names and addresses of all of the decedent's distributees (i.e., next of kin). While this may be a simple task where a decedent is survived by a spouse and/or children, the information may not be so easy to provide where the decedent's closest relatives are cousins and spread out throughout many different countries.

In a number of estates where I represented the Executor, distributees numbered in the twenties and many lived overseas. Also, particular problems arise when the decedent was orphaned or estranged from his or her family at a young age.

The named Executor is often faced with kinship issues such as these. Also, the potential for a Will Contest always exists. Thus, the Executor's obligations can be quite extensive and complex even before the actual administration of the estate begins.

Once the Executor is actually appointed by the Court, it is his or her job to collect the decedent's assets; pay bills, taxes and claims; and distribute the estate assets to the estate beneficiaries. In some instances, the Will may name more than one person as Executor and disputes may arise between the Executors. In a recent case decided by Surrogate Edward W. McCarty on June 2, 2011 and reported in the New York Law Journal on June 20, 2011, one of the Executors interfered with the sale of the decedent's
residence. This conduct prompted the other Executor to commence a Court proceeding pursuant to Surrogate's Court Procedure Action section 719 for removal of the Executor.

Even routine matters may pose extraordinary problems. As noted above, one duty of an Executor as a fiduciary is to determine and satisfy a decedent's debts or the claims against the estate. An Executor who improperly performs this task may end up personally responsible for payment. However, determining the extent and validity of a claim or debt can be difficult. As reported by Letitia Stein on July 27, 2011 in the St. Petersburg Times, a lawsuit was filed against the estate of a woman by a hospital which claimed the deceased woman incurred over 9 million dollars in medical expenses prior to her death.

Determining and paying estate taxes or estate income taxes is also a complex matter. Just this past year Executors and other fiduciaries were required to examine the new tax laws very closely to determine whether an option concerning the cost basis of estate assets or utilizing an increased estate tax exemption would be most beneficial.

Distributing estate assets to beneficiaries can also have many problems. Quite often, beneficiaries are minors and payment must be made to a Trust or to a Guardian appointed by the Court. Also, beneficiaries may not agree with the calculations utilized in computing their shares or may object to some action taken or not taken by the Executor. A contested accounting proceeding may result from these disputes. Additionally, a beneficiary may die before receiving his or her distribution and a proper estate fiduciary must be appointed for the beneficiary's estate before his or her share can be paid out.

The many responsibilities and issues faced by Executors and other estate fiduciaries in administering an estate are endless. Having an experienced estate settlement attorney is important to advise the fiduciary concerning these matters in estate administration

Continue reading "New York Executors Have Fiduciary Responsibilities and Are Subject to Court Review" »

Attorneys familiar with probating a Last Will throughout New York, such as in the Bronx and Brooklyn, are often confronted with issues that result in Court litigation. Many of these controversies involve family disputes and disagreements that have origins many years before the death of the decedent. Once a person dies, opportunities are presented to activate long held disagreements and family disharmony.

It is not uncommon for a testator to prepare a Will and disinherit a child or other close relative. New York law does not require that a person leave anything to a child. However, as previously discussed in the New York Probate Lawyer Blog, Estates, Powers and Trusts Law section 5-1-1-A requires that a portion of an estate be left to a spouse.

After being disinherited, a disgruntled child can use the requirements of the probate process to Contest a Will. In his or her view, the testator's Will should be deemed invalid because lack of capacity or undue influence was the cause of the disinheritance and not the personal disharmony that existed for many years. Since the decedent is no longer around to express his or her desires, it is now up to the Court and the litigants to sort out the family dynamics or dysfunctional relationships.

Will contests in the New York Surrogate's Court, like elsewhere, can be time consuming and costly. Examinations of attesting witnesses, review of the Will execution ceremony and discovery of information reflecting upon the decedent's capacity can be an excruciating experience for the family members involved. A recent article by Mary Ann Spato appearing in NJ.com on July 26, 2011 recounted the story of author Belva Plain who died last October. It appears that for almost 20 years prior to her death the decedent had fully supported her son, John, based upon an agreement that John would not contact members of the family or claim any part of her estate. Notwithstanding the agreement, after Belva died, John sought to void the agreement and claimed that his mother had been unduly influenced by his sisters. The Court ultimately ruled against John finding that he had no claim against his mother's estate.

A similar pattern was seen with regard to the estate of the late entertainer James Brown. As reported by Matt Birbeck on July 20, 2011 in RollingStone.com, Brown, who had an estate valued at about $100 million dollars, died in 2006. He left almost his entire estate to a Trust to benefit underpriviledged children in South Carolina and Georgia. However, after a Will contest by his seven children and fourth wife, the estate was split between the family and the Trust. Nevertheless, as reported, none of the estate money has yet to be paid out and there is still an ongoing dispute concerning Brown's final place of burial.

Another area that has been a source of many Court battles concerns the transfer of a person's assets prior to their death. Such transfers can destroy even the best estate plan and leave an estate without any assets to be paid to the beneficiaries named in a Last Will. The creation of joint ownership or designating beneficiaries on bank accounts causes these assets to pass to a joint owner or beneficiary automatically upon death, thus insulating them from the control of an estate fiduciary such as an Executor or Administrator. The provisions of a Will or the intestate statutes are essentially avoided. As a Nassau estate attorney, I have seen many instances where children, friends and caretakers rearrange a person's assets prior to death by having their names added as co-owners or beneficiaries. After the decedent passes on, the Will beneficiaries and estate Executor or Administrator are faced with the arduous task of engaging in litigation to discover and recover the decedent's assets. Questions of undue influence and intent surround these proceedings and the decedent cannot express his or her actual desires.

Continue reading "Estate Litigation Can Complicate and Delay Settlement of Decedent's Estates" »