New York Probate Lawyer Blog

A New York estate proceeding in the Surrogate's Court requires the participation of all interested parties. First and foremost, a decedent's distributees (next of kin) must be identified so that proper notice, usually in the form of a Citation or Notice, can be sent to the parties at their current address. A due diligence search must be made to determine both the identity and address of all distributees. Both Probate and Intestate Administration proceedings require that these parties be included in the case. Failure to properly include necessary parties in Estate proceedings, particularly where estate litigation is involved, can create a defect whereby the Court's final determination may be subject to being found void.

The New York Probate Lawyer Blog has previously discussed issues involved where a decedent-father had children but was not married to the child's mother at the time the child was born. These non-marital children - distributees - usually face an uphill battle to show that they are, in fact, children of the decedent, and that they are entitled to a share of the decedent's estate or other rights they are given as distributees in the Court process.

New York Estates, Powers and Trusts Law Section 4-1.2 entitled "Inheritance by non-marital children", sets forth the grounds and manner by which a non-marital child can demonstrate his or her relationship. The statute provides that a non-marital child "is the legitimate child of his mother." However, with respect to his father, unless there is some Court Order or official determination of paternity, the most common avenue to prove kinship is to follow the statutory direction and provide "clear and convincing evidence" that "the father openly and notoriously acknowledged the child as his own." The statute also provides for proof by "genetic marker testing."

I have represented individuals who sought to inherit an estate where it was necessary to present evidence to the Court that satisfied EPTL 4-1.2. A hearing is commonly held by the Surrogate or a Court referee and documents and witnesses are presented to satisfy the legal requirements of open and notorious acknowledgement.

In a recent case decided by Westchester Surrogate Anthony A Scarpino on January 19, 2012 and reported in the New York Law Journal on January 27, 2012 entitled, Matter of the Estate of Michael Konstantin, issues regarding proper notice of Surrogate's Court proceedings and proof of kinship of a non-marital child converged. In Konstantine, a proceeding was commenced by a non-marital child to vacate the probate of the decedent's Last Will and the distribution of millions of dollars of wrongful death proceeds on the ground that the non-marital child was not included as a party to the prior proceedings and was entitled to receive a share of the proceeds. Based upon the evidence presented to the Court, the Surrogate found that the child presented some evidence that "the decedent openly and notoriously acknowledged the non-marital child as his own" and also showed that genetic marker testing was a proper method of discovery. Therefore, the Court directed that the decedent's other children submit to genetic marker testing which has a high probability of showing whether the non-marital child had a common father.

Surrogate's Court cases require the assistance of experienced estate attorneys who are familiar with the rules and procedures of estate settlement to protect the interest of the parties interested in a decedent's estate.

Continue reading "New York Non-Marital Children Can Inherit From Their Father" »

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" »

The New York Probate of a Last Will and an administration proceeding for an intestate (no Will) estate each requires compliance with provisions in the New York Estates Powers and Trusts Law (EPTL) and the Surrogate's Court Procedure Act (SCPA).

Among the most fundamental provisions of these statutes is the requirement that parties who have an interest in the proceedings receive proper notice so that they can appear in Court and protect their rights. In this regard, it is not always easy to determine or to locate all the parties whose interests must be disclosed to Court so that proper notice is provided to them.

For example, in both probate and intestate administration proceedings, all of the decedent's distributees must be determined and located so that notice, usually in the form of a Citation, can be sent to them. A Citation is a paper issued by the Surrogate's Court in New York, whether in Nassau County or Brooklyn or otherwise, in which the Court designates a date for the case to appear on the Court calendar and advises the party receiving the Citation to appear on such date in connection with the particular relief that is to be presented (i.e., probate of the Will).

The New York Probate Lawyer Blog has previously discussed some of the many issues that arise in determining interested parties such as questions regarding Kinship and problems faced by persons whose father was not married to their mother at the time of birth.

In a recent case entitled Matter of Cutler, which was decided on October 31, 2011 and reported in the New York Law Journal on November 14, 2011, Surrogate Edward W. McCarthy III (Nassau County) was presented with an issue concerning a biological child of the decedent. It appears that the child had been adopted by a stepfather after the decedent and the child's mother were divorced. In connection with the probate of the decedent-father's Last Will, the proposed Executor asked the Court to unseal the child's adoption records so that the child could be located and given notice of the probate proceeding. As explained by the Court, notwithstanding the adoption of the child by the stepfather, New York Domestic Relations Law Section 117(1) provided that the adoption by the stepfather did not eliminate the child's interest as a distributee of the child's deceased parent. Therefore, the child remained a distributee of her father pursuant to EPTL 4-1.1 and was entitled to notice in the probate proceeding.

The Court allowed the unsealing of the records but appointed a Guardian ad Litem to supervise the process to protect the privacy of the adoption process.

As can be seen from Cutler the assistance of a Nassau Probate Lawyer was needed to advise the nominated executor with regard to probating the decedent's Last Will. I have represented many individuals in probate and intestate administration proceedings regarding the identification and location of all parties who must receive notice and providing the Court with the information necessary to complete these cases. Estate settlement and administration often necessitates a full review of a decedent's family history which requires extensive research. While thoughtful estate planning through the use of a Last Will and Living Trust may avoid some of these post-death problems, it is more often the case that such planning has not been done and estate administration is delayed and complicated while a search for interested parties is performed.

Continue reading "New York Distributees May Be Adopted Persons and Interested in a Decedent's Estate" »

The New York Probate Lawyer Blog has reviewed the many instances where family status or kinship can affect an inheritance. In a blog post dated November 22, 2011, there was a discussion regarding the determination of kinship in order to establish a person's right to receive a share of a decedent's estate.

Most cases in New York Surrogate's Courts, including Manhattan Probate proceedings or Westchester intestate Administration proceedings, require that a decedent's heirs be specified so that their rights are protected and the estate is distributed correctly.

It is not uncommon to find disputes among heirs and other estate beneficiaries concerning the validity of a claim as to heirship. Issues involving adoption, paternity, artificial insemination and other questions as to family relations can become fierce battles, especially where the outcome involves large sums of money in the form of an inheritance.

One particular area where controversy can occur is the determination of a decedent's spouse. While it may appear to be routine to ascertain a person's wife or husband, difficulties can arise, particularly where individuals live in many different states and countries during their lives all of which have different rules and recording keeping methods for marriages and divorces. The determination of a decedent's surviving spouse is essential for many reasons. From a tax standpoint, the Federal and New York estate tax laws provide that assets passing to the surviving spouse qualify for a 100% marital deduction. A surviving spouse also has many rights under New York estate laws including the right of spousal election. A spousal right of election gives a surviving spouse the right to receive a share of the decedent's estate notwithstanding that the decedent may have disinherited the spouse. The New York right of election is provided in Estates, Powers and Trusts Law section 5-1.1-A.

In order to invoke the benefits of the statute, an individual must, in fact, be the decedent's surviving spouse. A recent case entitled Will of Newman decided by Surrogate John M. Czgier, Jr., in Suffolk County Surrogate's Court on September 26, 2011 and reported in the New York Law Journal on November 1, 2011, shows how important it is to closely examine the facts supporting a claim of spousal status.

In Newman, the decedent's spouse filed a right of election. It was determined after investigation that the surviving spouse and the decedent had gotten married on a date 3 months before the surviving spouse finalized a divorce from a prior marriage. Since the surviving spouse's prior marriage was not dissolved before the marriage to the decedent, the marriage between the decedent and the claiming surviving spouse was void. Thus, the right of election could not be asserted due to the invalidity of the marriage.

New York estate planning is also affected by spousal rights. Wills and trusts can be drafted to take advantage of the estate tax marital deduction and bequests can be provided to insure that spousal rights are satisfied.

I have represented estate fiduciarys and claimants in situations where spousal claims must be determined and resolved. I also provide assistance to clients to develop estate plans that take into account a spouse's right to share in an estate.

Continue reading "New York Inheritance Can Depend on Family Status Such As A Valid Marriage" »

A recent article by Thomson Reuters details how the late Apple CEO Steve Jobs has done a good job of moving assets into trusts in order to keep them private from the public.

Jobs, who has a reputation for being secretive of his company's products as well as his personal life, knew the advantages of will and estate planning when it comes to privacy and distribution of assets.

There have been many examples of celebrities who have squandered millions they have earned during their careers because of poor planning and bad decisions. What isn't reported in the media are the millions of everyday, middle-class Americans who do the same. Those from more modest means can still reap all the advantages by consulting with a New York estate planning lawyer. Even if you don't have millions to leave behind, you should make sure your children, spouses and other survivors can deal with the stress of handling your estate issues without undue complications.

Jobs, the man who is credited with inventing or reinventing the personal computer, mobile phone, music business and tablet devices, died recently at age 56 of pancreatic cancer. Battling the illness for some years, he stepped down as Apple CEO in August.

Two years ago, he and his wife established trusts and put real estate investments in them. Trusts can minimize the amount of taxes survivors must pay and can keep the assets from being disclosed to the public in probate court.

On top of his shares of Apple, he had a fortune after selling Pixar to Disney, receiving $138 million in Disney shares in 2006. In September, Forbes estimated Jobs' worth at $7 billion.

Public records show that Jobs and his wife own property in Palo Alto and two pieces of property in Woodside. In March 2009, those properties were put into two different trusts.

If a trust is used, even a publicly recorded will could have very little information. It could say that the assets in a trust are left to a trustee. And they would be handed out according to the trust provisions, which are typically private.

Whether you have millions of dollars or not, every person can benefit from from estate planning.

Continue reading "Steve Jobs Puts Real Estate in Trusts in New York " »

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" »

Brooklyn and Nassau estate attorneys, as well as those assisting their clients throughout all parts of New York State, are often confronted with a myriad of issues relating to Powers of Attorney, Health Care Proxies, Article 81 Guardianship and estate settlement.

In a typical situation, an individual may have prepared a Last Will while at the same time preparing a New York Power of Attorney and a Health Care Proxy. The New York Probate Lawyer Blog has previously discussed the importance of preparing advance directives such as a Power of Attorney and Health Care Proxy by which others can be appointed to handle a person's property and health care issues in case of illness or incapacity.

All parties involved in these matters should be particularly aware that agents appointed in a Power of Attorney and Health Care Proxy have similar fiduciary duties to act appropriately as do Court appointed fiduciaries such as Article 81 Guardians and Executors and Administrators. In many instances, questionable conduct by these lifetime agents may end up being reviewed by a Court in a Guardianship Proceeding or in proceedings in the New York Surrogate's Court after the appointing person dies. Issues regarding property transfers, expenditure of funds, and the change of names or beneficiaries on bank accounts, life insurance and retirement funds can result in disputes that overlap lifetime and post death periods.

A recent lawsuit entitled Kaufman v. Kaufman, in New York State Supreme Court, New York County, provides an excellent example of the problems and issues that can arise in these situations. Kaufman involved two brothers, Allen and Kenneth, both of whom were appointed as agents in a Power of Attorney by their father, Hyman. Allen and Kenneth were also Co-Trustees under family trusts. Hyman, who had suffered a brain injury, had been in a nursing home for a number of years.

Allen petitioned the Court for an accounting and requested among other things, that Kenneth be removed as attorney-in-fact under the power of attorney and as a trustee for violating his fiduciary duties. As recounted by the Court, Allen claimed that Kenneth was "refusing to share financial information, failing to provide a complete record of financial transactions, and using Hyman's assets for personal and business purposes."

Following a review of the parties assertions, Justice Donna Mills in a decision dated August 4, 2011, directed Kenneth to provide an accounting of his activities pursuant to New York General Obligations Law Section 5-1505. This Statute, entitled "Standard of Care: fiduciary duties; compelling disclosure of record", requires in paragraph 2(3) an agent under a power of attorney "to keep a record of all receipts, disbursements, and transactions entered into by the agent on behalf of the principal and to make such record and power of attorney available to the principal or to third parties at the request of the principal"

It is apparent that issues involving fiduciary duties and the safeguarding or misuse of assets can overlap from the lifetime stage to a post death estate settlement controversy. Suppose Hyman had died prior to the resolution of the Supreme Court case. In such event, questions regarding the propriety of Kenneth's acts might need to be resolved in the Manhattan Surrogate's Court as part of the administration of Hyman's estate.

I have counseled clients, both fiduciaries and beneficiaries, in many situations similar to those raised in Kaufman. The appointment of lifetime agents, as well as executors and trustees, requires thorough consideration and the problems faced by the fiduciaries and those whose interests they are protecting can arise and require resolution in many different forums.

Continue reading "New York Power of Attorney Issues Overlap Guardianship and Estate Matters" »

A recent Wall Street Journal article reports that now is a good time to consider planning an estate in New York and elsewhere, given the volatility of the economy.

With interest rates low and Congress increasing the federal gift-tax exemption to $5 million from $1 million for people until the end of 2012, there are some advantages to planning your future now.

Putting together a will and other estate plans is a critical step too often delayed. No one wants to plan out their death, but the reality is that it is a necessary step for adulthood. Especially those with children; consultation with an experienced New York Probate Lawyer is a must. Estate planning is as much for the peace of mind of the person as it is for the time and energy it saves the relatives and friends who may be inheriting assets.

Not planning an estate can cause greed and frustration to lead to arguments and fighting; sometimes, tragically, the rift becomes irreparable. And for those with minor children, a lack of estate planning can leave the kids without clear direction of where they will live and how they will be cared for. The Wall Street Journal article hits on the current economy market and how this may be a good time to take the steps to planning out an estate.

Discounts:

Those who have large amounts of stocks in private companies can give away the stock at a big discount. Regardless of the market's typical ups and downs, an investor usually gets a discount when giving away some stock in a business that doesn't trade publicly.

In normal times, the Internal Revenue Service allows a 30 to 35 percent discount because it may be harder for the company to find a buyer. But with the stock market so volatile lately, owners of private stock can argue for a bigger discount.

With the stock market up several hundred points one day and down several hundred the next, the Chicago Board Options Exchange Volatility Index has reached in the 40s. The index measures the expected volatility of the S&P 500 over 30 days. Stock owners may be able to argue for discounts in the 45 to 65 percent range.

GRATs:

A grantor-retained annuity trust allows a person to give an asset to a trust, but also retain rights to annuitized payments over a certain time frame. For people with battered stock of publicly traded companies, you are really giving away future appreciation tax free.

If the stocks do well, a GRAT allows a person to transfer the upside to children or a trust without paying a gift tax. The gift-tax exemption is $5 million, but will go to $1 million after 2012. However, assets put into a GRAT must appreciate more than the IRS's "hurdle rate," which is 2.2 percent a year.

If the assets don't hit that hurdle, they go back to the original owner or the GRAT can be "reset" and transferred to a new GRAT. A GRAT can be as short as a two-year period.

Loans:

With low interest rates, loans to fund an investment can be beneficial right now. If a loan is taken out by a trust, the children can use the money to buy stock or depressed real estate at a low price and could pay back the loan and still reap the benefits of the investment now.

Continue reading "New York Estate Planning Timing Good With Market Bad" »

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" »

Beginning on July 24, 2011 same-sex couples will be allowed to marry in New York. As is common with most new laws, marriage equality provides many new estate and property rights while leaving unanswered other issues.

As is provided throughout New York estate statutes such as the Surrogate's Court Procedure Act (SCPA) and the Estates, Power and Trusts Law (EPTL), marriage creates a plethora of spousal rights that are quite beneficial. For instance, EPTL section 5-1.1-A provides for a spousal right of election. In essence, the statute seeks to prevent one spouse from disinheriting the other through a Last Will. The statute grants the disinherited spouse certain rights to receive a minimum share of a decedent's estate.

Similarly, where a person dies intestate without a Last Will EPTL section 4-1.1 provides that the surviving spouse is to receive a share of the estate. Absent the recognition of same-sex marriage, the death of one partner in a same sex relationship left the surviving partner as nothing more than a stranger with regard to estate distribution unless the decedent had actually named the survivor as a beneficiary under a Last Will or other testamentary document such as a revocable trust.

Manhattan probate and administration proceedings, as well as proceedings throughout New York, have been dramatically changed by the new law. Despite these new state entitlements, questions and problems remain, particularly with regard to estate planning and government entitlements. As of now, a federal statute called the Defense of Marriage Act (DOMA) provides that federal law only recognizes a marriage between a man and a woman. Thus, the same sex marriages that result in the recognition of state-level benefits are ignored for purposes of federal law. As an example, the New York Probate Law Blog has discussed the amendments to the Federal estate tax laws that were enacted in December 2010. Among the changes in the Federal law was a provision that allowed the "portability" or transfer of the unused $5,000,000 estate tax credit between spouses. However, such portability appears not to be available at present to validly married New York same sex couples since they are not considered to be married under Federal law. New York estate planning and estate settlement issues can be very complex given the conflicting application of laws. The same problem arises with the unlimited estate tax marital deduction which would be applied for New York estate tax purposes but not Federal estate tax.

In an article entitled For Love and Money: Inequalities Remain Despite Same-Sex Marriage, written by Allison Arden Besunder published in Law.com on July 1, 2011, many of the "disparities" and conflicts between Federal and New York State laws are discussed.

I represent clients in Surrogate's Court proceedings and estate tax and property matters. As a New York City estate attorney, it is apparent that clients preparing their Wills and executors administering an estate require an indepth understanding of both Federal and State laws.

Continue reading "Manhattan and Other New York Couples Still Face Estate and Other Problems Under the Same-Sex Marriage Law" »

In Stern v. Marshall, the U.S. Supreme Court recently ruled against the estate of Anna Nicole Smith, who had married a Texas oil tycoon 63 years her senior a year before he died, The New York Times reports.

What this case illustrates is the importance of hiring an experienced New York Probate Lawyer who can sort out any estate planning and trust issues in New York City or elsewhere that need to be finalized to ensure a smooth process for all involved.

According to The Times, Smith, a former Playboy playmate and model whose real name was Vickie Lynn Marshall, had once received a bankruptcy court award of more than $400 million and asserted that J. Howard Marshall II's son had wrongfully interfered with a gift she had expected from his father.

The majority of justices held unconstitutional a provision of the bankruptcy laws that authorized bankruptcy judges to hear some kinds of claims. The case rested on the idea of separation of powers in the context of bankruptcy.

The case illustrates the need to hire an experienced New York Probate Lawyer who is well-versed in New York Probate Law and who can help you sort through this complex area of law. When bankruptcy court is involved, it can be even more difficult to navigate.

Selecting an executor to handle your New York estate or will may be the most important decision you can make in handling your finances. Being an executor of an estate means being responsible for distributing assets as laid out in a will.

While many people would look at this as an honor to be trusted with a person's assets once they die, it brings with it a great deal of responsibility and dedication. There are legal obligations to being an executor and executors often can use the advise and counsel of a New York Estate Lawyer in how to handle major issues on behalf of an estate.

Wills may be challenged and other problems may arise, so hiring an experienced law firm can help settle these types of issues. Some issues may be handled outside of court and others require court oversight.

Some people think that handling an estate or executing a Will is as simple as contacting family members and doling out cash and family heirlooms, but there is much more. And one of the things that frustrates and mystifies many people are taxes on an estate.

Estate tax issues arise on both the State and Federal level. There are ways to minimize Federal and New York Estate Tax. One way to save is through a "QTIP" trust, which enables surviving spouses to bypass paying estate taxes through the use of a tax credit. Lifetime gifts and charitable contributions are other ways. Trying to do it alone will leave complications for survivors that can turn family members against each other and leave an estate open to unnecessary tax implications. The New York Probate Lawyer Blog has previously discussed the recent changes that were enacted for the Federal Estate tax.

Continue reading "U.S. Supreme Court Rules in Stern v. Marshall Against Anna Nicole Smith's Estate" »

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" »

Imagine the emotion of having a parent or relative die and then deal with the shock of being left a large sum of money as an inheritance. Many would not consider it a burden. However, without the proper plan to handle that kind of change in your life, you could be left mismanaging the money, fighting with siblings and wasting away money your family worked hard to save.

That's why as previously discussed on New York Probate Lawyer Blog, it is imperative you select a proper executor or trustee in dealing with estate planning. A well-qualified New York Probate Attorney can help plan and manage an estate, including life insurance, stock options and real estate.

For example, consider the trouble this Illinois woman had when her mother died of cancer in June 2007. She and her four siblings inherited their parents' $1 million house, according to CNN Money.

While all siblings agreed to sell the house, it became a hassle because some believed the house was overpriced and others thought it was priced correctly. Eventually, the house sold, though for 9 percent less than their initial estimate. But in the meantime, the siblings had to pay utility bills, landscaping costs and deal with a house that was nearby to no one.

AS CNN Money points out, there are challenges to being a beneficiary. While it is comforting to be remembered and while there is likely a material benefit, there are challenges, including tax laws, family drama and complexity surrounding business dealings.

New York probate law requires court intervention, affidavits, petitions and notice to family members, all of which can be daunting for someone to do on their own. And, if done incorrectly, it can become an ongoing financial burden that relatives never intended it to be.

When dealing with an inheritance or a will, consider how an experienced New York City probate attorney can assist you in either planning your estate or executing the will of a loved one:

• Planning your trusts and estates: You should start by taking inventory of your assets and deciding who should execute your will and to whom you want to leave your assets. An attorney is best able to assist you in making and executing a plan.
• Choosing an executor: A New York State executor may be appointed when someone leaves assets after death. If you are chosen as an executor, you may need sound legal advice on how best to execute the will.
• Dealing with contested wills: In New York, wills can be contested in court. These are often done by heirs who were left little in a will from a relative. There must be a valid legal ground for objecting to a will, but the process can be emotionally and financially exhausting. Consult a probate lawyer who can work to minimize the damage.

Continue reading "Large Inheritances Create the Need for Sound Fiscal Planning and Execution in New York" »