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Probate-300x201A Last Will and Testament in New York must be admitted to Probate in order for it to become effective.  The probate process involves the filing of a petition with the Surrogate’s Court along with additional documents.  Persons who are identified as distributees (the decedent’s next of kin) must be notified.  This is typically accomplished through the service of a Court issued Citation.  Distributees have a right to contest a Will.  The New York Probate Lawyers Blog has published many articles concerning the probate and administration of estates and contesting a Will.

Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides the requirements for the proper execution of a Will.  In cases where the statutory steps are not complied with, an objection to a Will can be filed based upon lack of due execution.  For instance, two attesting witnesses are required.  If there are not two witnesses, a Will can be denied probate.

Other grounds for a contested Will include lack of testamentary capacity and undue influence.  While it may seem initially that a Will that is attorney supervised and executed in accordance with the estate law should result in a simple rejection of objections by a Court, that is not always the case.

shutterstock_1465659569-300x201Article 81 of the Mental Hygiene Law (MHL) contains the provisions regarding the appointment of a Guardian.  A Guardian can be appointed for personal needs and also for property management.  Generally, according to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment”, a Guardian is appointed after the Court determines that the alleged incapacitated person is incapacitated.  There needs to be clear and convincing evidence which includes a determination that the person is likely to suffer harm and that they do not appreciate or understand the nature of the disability that affects them.

I have represented individuals in many Guardianship cases throughout New York.  As a Guardianship lawyer, I am aware that a Court will want to see the extent to which a person can handle their activities of daily living such as personal health and care matters and financial transactions.  The New York Probate Lawyer Blog contains numerous posts regarding Guardianship issues.

One interesting aspect of Article 81 is Section 81.29 entitled “Effect of the appointment on the incapacitated person”.  Among this statute’s provisions is the authority for the Court to revoke, modify or amend any power of attorney, health care proxy, contract or conveyance made by a person found to be incapacitated.  By utilizing this provision, a Court is able to rectify transfers or delegations of authority made by a person who did not have the capacity to enter into the transaction at the time.  This provides an additional layer of protection for individuals and forestalls abuse.

shutterstock_1372939091-300x200Many articles have been written about New York estate planning when a couple is considering or entering into a divorce.  The New York Probate Lawyer Blog has published a number of articles on this topic in the past.  However, it is important from time to time to review this information.

Spousal rights are a very special area when considering estate issues.  This is due to the fact that New York estate laws provide a surviving spouse with certain rights, most importantly a spousal right of election.  This prevents a surviving spouse from being disinherited.  Estates, Powers and Trusts Law Section 5-1.1A entitled “Right of election by surviving spouse” essentially provides that a surviving spouse is entitled to receive at least one-third of a deceased spouse’s estate.  So, even when spouses are engaged in actual or possible divorce proceedings, the death of one may still result in an inheritance by another.  Until there is a final divorce or a waiver of spousal rights, a feuding husband and wife may be subjected to inheritance rights.  I have seen many cases where parties have been separated for many years, even decades, but a spousal right of election might still apply.

As can be imagined, even though parties may change their Last Wills and Trusts and other asset dispositions, inheritance by a surviving spouse prior to a divorce may not be avoided.  However, once parties do officially become divorced, there are still many items to be taken into consideration.  While a divorce may nullify preexisting provisions in Wills or other post-death beneficiary designations, these documents should not be left to chance.

shutterstock_1123004039-300x199One of the benefits from implementing a New York estate plan and preparing a Last Will and Testament is the ability of a testator to select an executor.  This option does not exist when a person dies intestate without a Will.  In such a situation, the estate administrator is determined pursuant to the estate laws contained in Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administrations”.

The selection or nomination of an executor, as well as a substitute executor, is a very important aspect of Will preparation.  Such person, once appointed by the Surrogate’s Court, is in charge of handling all estate affairs.  This includes determining and collecting estate assets, paying expenses, resolving estate claims and liabilities, and ultimately, making distributions to the estate beneficiaries.

An executor is essentially the chief operating officer regarding all aspects of the estate.  He must deal with lawsuits concerning the decedent’s affairs and select and interact with accountants and attorneys needed to perform services in furtherance of estate settlement.  The New York Probate Lawyer Blog has published many articles regarding estate fiduciaries and administration issues.

shutterstock_599563214-300x200There are numerous situations where a beneficiary of an estate or trust in New York is entitled to receive his distribution.  An estate may be in existence where the decedent left a Last Will and Testament providing for various bequests.  When a decedent dies intestate without a Will, his distributees are entitled to receive their distributive share of the estate.

Another common situation occurs where a person creates a Living or Grantor Trust during life.  Under the terms of the trust, when the grantor dies, the trust principal is directed to be paid to persons named in the trust.

While the above circumstances are not all inclusive, the common factor is that the designated beneficiaries of an estate or trust want to receive their allotted share.  I have been involved in many cases in the New York Surrogate’s Courts concerning this issue.  The New York Probate Lawyer Blog contains numerous posts relating to estate matters.  Here are a few suggestions regarding proceedings to facilitate payment.

Estate-Administration-300x200Following the death of an individual, there may be a need to create a formal estate to deal with the decedent’s assets and affairs.  The creation of an estate is typically either a probate estate where the decedent leaves a Last Will and Testament or an administration estate where the decedent dies intestate.

There are different methods to determine the identity of the individual who is to be appointed as the estate fiduciary.  In the case of a probate where there is a Will, the document provides for the nomination of an executor.  When there is no Will, the New York estate laws, specifically, Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration,” provides the direction as to who can be appointed as estate administrator.  In either situation, the initial consideration for the person who might be appointed as fiduciary is whether they understand the responsibility about to be accepted and whether they want to accept the position.

Acting as an estate fiduciary is a big responsibility.  The executor or administrator must process a petition through the Surrogate’s Court to effectuate the appointment.  This process may entail a lot of work, particularly in cases where there may be a Will contest, kinship issues or disputes among parties as to whom should be appointed by the Court.  In all of these matters, the assistance of experienced estate lawyers familiar with Surrogate’s Court litigation should be obtained.

shutterstock_1123004039-300x199In most New York estates, there is no question or controversy as to which state law applies to estate administration.  When a person who lives and maintains his primary residence in New York, the provisions of New York estate law are looked to regarding estate settlement.  Thus, a probate proceeding or petition for letters of administration is filed in the county where the decedent resided.  The New York Probate Lawyer Blog has published dozens of articles concerning probate and intestate estates.

The fundamental principle which controls the jurisdictional law that applies to a decedent’s estate is known as domicile.  A person may have different residences in various states or countries.  However, there is only one domicile.  A person’s domicile is simply stated as being his primary home.  While the issue of domicile determination can involve an examination of various facts, seeing where a person files local taxes, maintains a business, has a driver’s license and considers his home to be are significant starting points.

Domicile is important because the laws affecting an estate may vary from state to state.  For instance, a New York domiciliary estate is subject to New York law which includes statutes contained in the New York Estates, Powers and Trusts law.  An example of one right that may be affected relates to a spouse’s right to avoid disinheritance commonly known as a right of election.  Under EPTL Section 5-1.1A, a surviving spouse has the right to obtain at least one-third (1/3) of a decedent’s estate.  However, Section 5-1.1A(c)(6) states, in part, that the right of election “is not available to the spouse of a decedent who was not domiciled in this state at the time of death.”  As a result, if a decedent was a domiciliary of a state other than New York, that state’s estate law would control any right of election for the surviving spouse.  Interestingly, the above statute allows a decedent to elect to have the New York statute apply.

20200522-Estate-Planning-300x200Estate planning in New York encompasses many types of considerations.  The most common way to plan an estate is to prepare a Last Will and Testament.  When a person dies, a Will must be filed with the Surrogate’s Court to be validated.  This is known as the probate process.  Probating a Will involves filing a petition with the Court.  All of the decedent’s next of kin must be given notice of the proceeding.  Most probate matters are rather routine, and the Will is admitted to probate, and letters testamentary are issued to the nominated executor.  The New York Probate Lawyer Blog contains many posts dealing with estate administrators and estate settlement.

Sometimes a person desires to avoid probate.  There can be many reasons for avoiding a Court proceeding.  One of the main goals is to avoid a possible Will contest.  Another reason may be to prevent a search for next of kin who may need to receive notice in the probate case.

The creation of a Living Trust or a Revocable Trust is a means by which assets can be transferred without the need to probate a Will.  In order for a Living Trust to be effective, all of the grantor’s assets must be transferred into trust ownership.  This transfer is easy for financial accounts where the title of the account can be changed into the name of the grantor as trustee of the trust.  Other assets, such as real estate or the ownership of a cooperative apartment, may be more complicated.  As to real estate, a deed and other transfer documents must be prepared and filed with the appropriate county office to show the transfer of the ownership into the trust.  Tax forms and other recording papers and fees need to be properly accounted for.

shutterstock_571088005-300x200It is apparent that the preparation of New York estate planning documents is important.  A lot of time and effort can be expected in connection with reviewing assets and financial interests, figuring out the manner in which dispositions are to be made to beneficiaries and implementing the papers and documents to formalize the plan.  In view of the commitment to start and finish this procedure, it is equally important to make certain that the documents that are prepared are correctly and properly created and also executed.

While there are many considerations involved in the above process, these three (3) areas should be at the top of the list.

Expressing Creator’s Intentions:  The whole point of planning an estate is to insure that a testator or creator of a document can memorialize his intentions regarding the disposition of assets.  Thus, the papers that are prepared, whether a Last Will and Testament or Living Trust or even advance directives, such as a power of attorney or health care proxy, should contain clear and unambiguous provisions and directions.  It makes sense to consult with an estate lawyer who is familiar with drafting clauses which effectuate intentions regarding bequests and contain appropriate dispositive language.  Even the simplest of documents may require clauses dealing with alternative or contingency dispositions.  Also, it may be necessary to include specialized language concerning estate tax matters or the payment of estate debts or expenses.  A well drafted, unambiguous Will or Trust is essential for the creator’s intentions to be accomplished.

shutterstock_635914376-300x144Contesting a Will in New York involves many different rules of law and procedures.  The Estates Powers and Trusts Law (EPTL) and the Surrogates Court Procedure Act (SCPA) provide various guides.  At its essence, the validity of a decedent’s Will must comply with EPTL Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”    According to the requirements of the statute, a Will needs to be written, signed at the end by a testator, and there must be at least two attesting witnesses.  If the rules regarding the execution are not complied with, then objections to a Will based upon lack of due execution may be successful.  In such a case, a Will is not admitted to probate.

Other grounds for Will contests include lack of testamentary capacity and undue influence.  Proving the existence of these circumstances is often difficult.  The New York Probate Lawyer Blog has published many articles discussing Will contests and Surrogate’s Court matters.

One of the questions which arises in connection with probate and Will contests is payment of the costs associated with the proceedings.  Putting aside legal fees, there are a few items which should be of interest.  Contested probates typically begin with discovery of information under SCPA Section 1404 entitled “Witnesses to be examined; proof required.”  This statute allows for obtaining documents and deposition testimony from the attorney who drafted the Will and the attesting witnesses.  Payment for a Court reporter to transcribe deposition testimony can be costly.  If a person wants to obtain this testimony, he may need to incur substantial expenses.  However, according to SCPA 1404(5), the testator’s estate is responsible to pay for the examination of the first two attesting witnesses.

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