New York city skyscrapers
Read on for useful information about Jules
Haas, his practice, and blog below
Read the Blog

Article 81 of the New York Mental Hygiene Law (“MHL”) provides the statutory provisions covering the appointment of a Guardian.   A Guardian may be appointed for personal needs and also for property management.

The procedure set forth in the statute to commence a Guardianship proceeding is straight forward.  MHL section 81.08 states that there should be a petition that needs to include information regarding the alleged incapacitated person (“AIP”) such as name age and address and the AIP’s ability to engage in activities of daily living.

In order for the Court to appoint a Guardian it must find that the AIP is incapacitated or agrees to the appointment.  One interesting aspect of MHL section 81.02,  which is entitled “Power to appoint a guardian of the person and/or property; standard for appointment”, is that the Court is required to consider whether the AIP has other “available resources” that may be used rather than having a Guardian appointed.   Such resources are described in MHL section 81.03(e) and include nurses, aides and powers of attorney and trusts.

The administration of a New York estate typically has three phases.   At the outset, a fiduciary needs to be appointed such as an Executor or an Administrator.  Once there is someone in an official capacity to handle the decedent’s affairs, the process of locating and collecting assets can begin.  Also, estate debts and obligations must be determined and resolved.  Both of the above phases can cause delays in finalizing the estate due to such problems as Will Contests or disputes regarding the ownership of assets.

The final part of the process in handling a decedent’s affairs is the accounting phase.  All fiduciaries, whether an Administrator or Executor or Trustee, must provide an accounting to the estate beneficiaries.   The New York Probate Lawyer Blog contains many articles discussing the various issues involved with administering an estate.

An estate accounting contains many schedules which provide detailed information regarding the amounts received and expended by the fiduciary.  The beneficiaries have an opportunity to review the accounting and file Objections if they feel there has been a breach of fiduciary duty.  The Surrogate’s Court will scrutinize the accounting for accuracy and proper reporting.  Recently in a Bronx estate, the Court found that the Administrator did not include the value of the decedent’s cooperative apartment.  The cased was entitled Estate of Scott and was decided by Bronx Surrogate Neilda Malave-Gonzalez, on August 2, 2019.  In Scott, the Court determined that there was insufficient proof that the decedent’s son was entitled to succeed to the ownership of the apartment and exclude its value from the accounting.

There are many requirements in New York estate law concerning the proper execution of a Last Will and Testament.  The basic statute setting forth these rules is Estates, Powers and Trusts Law (“EPTL”) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.    The validity of a Will requires that a testator sign the Will at the end and that there be two attesting witnesses.

When the statutory formalities to execute a Will are not adhered to there may be estate litigation when the document is presented for probate.  An interested party may file Objections to the Will that result in a Will Contest.  The New York Probate Lawyer Blog contains many articles concerning estate administration and the probating of Wills.

A Will can be changed or revised as many times as a person desires to do so.  However, there are also certain requirements that must followed in order to accomplish a successful revocation.    EPTL section 3-4.1 entitled “Revocation of Wills; effect on codicils” contain rules regarding revocation.  The statute says that a Will can be revoked or changed by executing another Will or by certain acts of mutilation or obliteration.

In Surrogate’s Court proceedings there are many instances where a party can file Objections.  Estate Litigation usually involves matters that are commenced with a Petition.  For example, in Probate Cases, the probate process is started by filing a Petition for Probate and Letters Testamentary.  Similarly, when a decedent dies without a Last Will, a petition for Letters of Administration is filed to begin the process to administer an intestate estate.

Another example of a Surrogate’s Court petition is one to settle or approve the accounting of an Executor or Administrator.  When these various types of petitions are filed with the Court official notice, usually in the form of a Citation, is given to the parties who have an interest in the outcome.

These parties usually have a right to file Objections to the various petitions.  Thus, there can be Objections to Probate which lead to a Will Contest.  Also, it may be necessary to Object to the matters set forth in an accounting by an Administrator or Executor.

Probate in New York is the process by which a Last Will and Testament is validated by the Surrogate’s Court.  When a Will is admitted to probate the provisions of the document are given full force and effect.  The Court then issues Letters Testamentary to the appointed Executor.

The probate process can be rather complex.  One of the most important aspects is providing notice of the proceeding to the decedent’s distributees (next of kin).  This is required because these individuals have a right to Object to the Will.  If Objections are filed there is a Will Contest in which the validity of the Will must be determined.  If the Will is found not to be valid, a decedent usually is then deemed to die intestate (without a Will) and his estate would pass to his distributees.  The New York Probate Lawyer Blog has published many articles regarding the Will Contest process.

There are occasions when a person creates a new Will which changes the beneficiaries from a prior Will.  In these cases persons whose interests may be adversely affected by the later Will also have a right to Object to the admission to probate of the new Will.  Surrogate’s Court Procedure Act §1410 entitled “Who may file Objections to probate of an alleged Will” allows for Objections to be filed by person’s whose interests are adversely affected by the probate of a Will.

All fiduciaries such as Trustees, Executors and Administrators must properly perform their duties.  When there is a breach of fiduciary duty, a Court can suspend the fiduciaries’ powers or remove them from office.

Revoking the appointment of a fiduciary is not easily accomplished.  The Courts typically respect a person’s choice of Executors or Trustees and try to follow the intentions in a Last Will or Trust.  However, there are circumstances when revocation and removal is warranted.  Also, a fiduciary has a right to a full hearing before being formally removed.  This involves discovery of information and testimony before the Court.

In a recent Brooklyn estate decided by Brooklyn Surrogate Margarita Lopez Torres on March 20, 2019 entitled Matter of Estate of Gadsden, the Court removed a Trustee of a Living Trust.  This case involved a proceeding under Surrogate’s Court Procedure Act Section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct”.  The statute sets forth specific grounds that would be a basis for removal.

It is important for a New York domiciliary to engage is proper estate planning.  A lot of time and effort usually goes into creating a Last Will, Living Trust, Health Care Proxy, Power of Attorney and other planning initiatives.  It is always a tragedy when a well thought out estate is thwarted by errors relating to ambiguous or defective Will or Trust provisions or defective execution procedures.

The New York Surrogate’s Courts are filled with cases involving Contested Wills.  Estate Litigation surrounding the preparation and execution of a Will not only disrupts the testator’s estate plan, it delays the settlement of an estate.

The New York Probate Lawyer Blog has discussed the requirements for executing a Last Will.  Statutory requirements are contained in Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.  When the guidelines of the statute are not explicitly complied with, the validity of the document may be questioned.  Unless a Will is validated by the Surrogate’s Court and admitted to probate, the provisions and dispositions in the Will are not mandated to be followed.  Even a slight variation can cause controversy.

Estate Planning in New York can include the creation of a number of different papers such as a Last Will and Testament and Living Trust.  Also, a person may prepare a Durable Power of Attorney, Living Will and a Health Care Proxy.

At the outset of the drafting of these papers, it is important for the creator to fully ascertain the nature of his assets and the manner in which title to them is held.  Also, the creator should carefully consider his intentions so that decisions can be made regarding the dispositions to be contained in the documents.   The New York Probate Lawyer Blog has discussed these matters in earlier postings.

The creator’s goal is to clearly and explicitly set forth his intentions and desires regarding his assets and his beneficiaries.  A Will or Trust may contain specific gifts of a designated amount of money.  There may be dispositions that provide for a beneficiary to receive a certain percentage of an estate or fund.  Percentages are a good way to dispose of assets since it may be difficult to determine a person’s exact monetary estate at death which may not occur for many years after the estate planning papers are prepared.

The settlement of a decedent’s estate involves numerous activities.  When a person is appointed as the Administrator or Executor of an estate, one of the most important fiduciary duties is to locate and collect the assets that were owned by the decedent.  In some estates this task can be uncomplicated.  If the decedent owned bank accounts, real estate or funds in  a financial institution which the Executor or Administrator was aware of, the various forms and transfer papers can be prepared to facilitate the liquidation and collection of the assets.

However, there are many estates where the identification and collection of estate assets is not so clear or simple.  There may be many difference issues that can delay or prevent recovery.  To begin with, it may be difficult to locate or identify estate property.  The decedent may have kept poor or confusing records.  Also, some assets may be held in on-line accounts or in the name of corporations or other entities in which the decedent had an interest.

Additionally, even where assets can be located, there may be disputes with third parties regarding ownership.  The New York Probate Lawyer Blog has posted a number of articles regarding the recovery of a decedent’s assets.

The initial steps that are typically taken with regard to estate settlement concern the appointment of a fiduciary.  The fiduciary can be an executor when there is a Last Will and Testament or an Administrator when a person dies intestate.

In order to be appointed by the Surrogate’s Court as a fiduciary a person must meet certain qualifications.   Surrogate’s Court Procedure Act (SCPA) section 707 entitled “Eligibility to receive letters” provides basic criteria for a fiduciary.  This statute states, in part, that a person is ineligible to receive letters if they are an infant, incompetant or a non-domiciliary alien.  Also, a felon is ineligible.  The letters that are referred to include Letters Testamentary, Letters of Administration and Letters of Trusteeship.  There is an expansive definition of “Letters” in SCPA section 103 (34).

While many individuals may be eligible to receive Letters and be appointed as a fiduciary, there may be additional qualifications that must be met to complete the appointment.  SCPA section 708 entitled “Qualification of fiduciaries” provides among other matters, that the appointee obtain a “bond” that may be required by the Court or under the law.  The New York Probate Lawyer Blog has discussed the issue of Surety Bonds in earlier posts.  There may be a requirement by the Court to obtain a Letters of Administration Bond.  This is very common.

Contact Information