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Article 81 of the New York Mental Hygiene Law (MHL) is entitled “Proceedings For Appointment of a Guardian for Personal Needs or Property Management”.   Under this statute, a Guardian can be appointed for a person who is found to be incapacitated.

A determination regarding incapacity must be based upon clear and convincing evidence (MHL § 81.02).   In most Guardianship cases, the Court will review the functionality of the alleged incapacitated person (AIP). This means that there will be an examination of the AIP’s ability to handle activities of daily living such as the ability to handle finances, shop, cook, take care of personal hygiene and other ordinary daily activities. Continue reading

The estate fiduciary is responsible to collect and protect estate assets. These assets may be bank accounts, retirement funds or brokerage accounts. In many estates the most valuable estate is the decedent’s residence which can be a single family home or a cooperative apartment or a condominium unit.

The New York Probate Lawyer Blog has provided a number of articles discussing the problems that arise when a decedent’s property is occupied by third parties. These occupants can be relatives, friends or just tenants. However, the Executor or Administrator of an estate may need to have the property vacated so that it can be sold. Major disputes and estate litigation arises when the occupants refuse to vacate. Continue reading

An estate in New York is administered by an Executor or Administrator. These Surrogate’s Court appointees have a fiduciary obligation to collect the decedent’s assets and also to resolve or pay all estate debts and obligations.

It is not always easy when a person dies for the estate fiduciary to determine the nature and extent of the decedent’s debts. There may be a period of time after death when the decedent’s mail and other information needs to be reviewed to see what credit cards, medical bills or mortgage payments are outstanding. The administrator or executor must determine and resolve all of these obligations before the estate can be settled and the net estate funds can be distributed to the estate beneficiaries. If the fiduciary distributes estate assets to beneficiaries before estate claims are resolved, the fiduciary may be personally liable for the payment of these items. Continue reading

Most people prepare their estate plans and Last Wills and expect that the provisions and directions they set forth can be carried out after death. The rationale for planning an estate is to avoid intestacy which would leave to chance the manner in which an estate is to be distributed. As discussed in many articles in the New York Probate Lawyer Blog, when a person dies without a Will, the New York estate laws provide that the estate is distributed to the decedent’s next of kin. This result may not always reflect a testator’s intent.

When a Will is submitted to the Surrogate’s Court for probate, the estate laws and procedures require that official notice be provided to the decedent’s next of kin. This is because these individuals have a right to contest the Will. If a Will is invalidated, the decedent’s estate is distributed to the next of kin. Continue reading

The execution of a New York Will must comply with the requirements of the estate statutes. It is important to follow these rules so that the Will be validated and admitted to probate. There have been numerous posts in the New York Probate Lawyer Blog explaining the need for the proper execution of Wills. The basic estate law dealing with this matter is Estates, Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of wills; formal requirements”.

This statute sets forth a number of requirements including: (i) that a Will be signed at the end of the document: (ii) that there be at least two witnesses; (iii) that the testator sign the Will in the presence of the witnesses; and (iv) that the testator declare to the witnesses that he is signing his Will. Continue reading

A decedent may leave many types of estate assets. Some of these items that are held in the decedent’s name alone will be payable to the executor or administrator as part of the administration estate. Other assets such as life insurance or pension proceeds may be payable to designated beneficiaries. The New York Probate Lawyer Blog has many posts regarding estate assets and administration.

It is interesting to know that these designated beneficiary assets may result in complicated issues which involve both the rights of the named payees and other estate interests. In particular, these issues are often present when a decedent has retirement or death benefits with the New York City Employees’ Retirement System commonly referred to as NYCERS. Continue reading

When a fiduciary is appointed to administer a decedent’s estate, one of the main objectives is to collect and protect a decedent’s assets. Thus, Administrators and Executors typically search through the decedent’s papers and records to learn about the decedent’s financial estate.

In most cases it is rather straight forward to find bank account statements, brokerage accounts and real estate titles. However, as New York City estate lawyers know, there are many instances when determining and collecting a decedent’s valuable assets can be very difficult. Continue reading

When a person dies it is common to refer to matters dealing with the decedent as issues concerning his “estate”. However, it is important to learn exactly what is meant by a person’s  estate”.  Upon death, an individual typically owns various assets. These may include real estate, bank accounts, brokerage accounts, individual retirement accounts, life insurance and pension benefits. All of these items comprise a decedent’s “gross estate”. However, a distinction needs to be drawn between the “gross estate” and a decedent’s estate for purposes of administration.

The assets owned by someone who dies that are held in his own name are going to be controlled by a person’s Last Will. If there is no Last Will, these items will be distributed according to the laws of intestacy. In these cases, the Surrogate’s Court appoints either an Executor or an Administrator. Assets that are held jointly or with a named beneficiary may be part of a decedent’s gross estate but are not part of the administration estate. The New York Probate Lawyer Blog has published many articles talking about the way various assets are transferred upon an individual’s death.

It is important to know that an Executor or Administrator is the only person authorized to deal with the affairs of the administration estate. The estate fiduciary has the power to collect assets, pay estate taxes and bills, sell estate property such as real estate and engage in estate litigation to resolve estate disputes.  The estate beneficiaries do not have this authority unless they are the Court appointed fiduciary.

The preparation and execution of a Last Will in New York requires careful attention to detail. When a Will is being formulated a New York Estate lawyer typically obtains information from a testator regarding assets and intentions concerning beneficiaries.

Since the purpose of estate planning is to insure that a person’s assets are disposed of properly, it stands to reason that a significant amount of time and effort be devoted to examining these issues. For example, the New York Probate Lawyer Blog has published numerous articles that point out that a Last Will typically only controls assets that are held by a decedent in his name alone. Assets that pass by operation of law, such as jointly owned assets or those that have designated beneficiaries such as life insurance or retirement accounts, are not controlled by Will provisions. Therefore, it is important for a testator and for an estate lawyer to understand the nature of the asset ownership so that the plan and the Will dispose of the estate according to a testator’s wishes. Continue reading

The settlement of an estate in New York invariably involves the kinship of a decedent. Whether the proceeding concerns the probate of a Last Will or an intestate administration, the Court requires full and specific information regarding the decedent’s next of kin (known as “distributees”).

In a probate case, the decedent’s distributees must be identified and given notice of the probate proceeding because these individuals have a right to contest the Will. Where a person dies intestate (without a Will) the statutes provide that the individuals who are entitled to serve as the estate Administrator and also inherit the estate are the decedent’s distributees. Continue reading

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