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Kinship-blue-200x300The initial inquiry when a person dies is whether or not the decedent has a Last Will and Testament.  Where a Will exists, a probate proceeding is commenced in the Surrogate’s Court.  Assuming the Will is admitted to probate, the terms of the document control the appointment of an executor and the distribution of estate assets.  Will contests and other issues regarding jurisdiction may delay the probate process.

In situations where there is no Will, the procedure is to obtain letters of administration in an intestate estate.  The appointment of an administrator is controlled by Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration.”  Priority of appointment is given to the closest surviving next of kin, also known as distributees.  Distribution of the assets of the estate is also provided for the closest surviving distributees.  Estates, Powers and Trusts Law Section 4-1.1 sets forth the priority of distribution.  The New York Probate Lawyer Blog has discussed the many issues and aspects of both probate and intestate administration proceedings in the Surrogate’s Court.

One of the basic issues in any estate case is determining the identity of a decedent’s distributees.  Figuring out a person’s next of kin, particularly in an intestacy case, directly affects the appointment of the administrator and the distribution of assets.  Next of kin identity may be very hard to determine.  A decedent may not be survived by any close relatives such as a spouse or children.  Also, a person may not have had much contact with extended family for decades, and family members may reside in other states or countries.  Where kinship is unclear, the Court may need to engage in estate litigation and require a kinship hearing.  Since these matters often require testimony and family history documents such as death, birth and marriage records, a professional genealogist may be needed.

Estate-Administration-300x200The probate of a Last Will and Testament is essentially the procedure by which a Will is validated by the Surrogate’s Court.  The New York trust and estate laws contain many provisions which are intended to protect the sanctity of a Will and insure that the intentions of a decedent are carried out.

First and foremost are the provisions contained in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  This statute sets forth the various requirements for the signing of a Will.  There is a requirement that the Will be written, that there be at least two (2) attesting witnesses and that the Will be signed by the testator at the end.

The basic requirements found in the statute ensure that a decedent’s wishes which are expressed in the document are legitimately preserved.  When a person dies it is apparent that he is no longer around to certify and authenticate the dispositions that he set forth in the document.  The New York Probate Lawyer Blog contains numerous articles explaining and discussing the probate process.  New York probate and estate lawyers are familiar with the estate laws.

shutterstock_204507106-300x254One of the primary assets which may be owned by a trust or estate is real estate.  This asset may be in the form of residential real property or commercial property.  Also, other types of similar assets should be included in the discussion.  A condominium unit is real property but is typically in the form of a residential apartment.  A cooperative apartment, while appearing to be real estate, is, in fact, personal property.  The cooperative ownership is really shares of stock in a cooperative corporation, which entitles the owner to a proprietary lease to the apartment unit.

During the course of estate settlement, a fiduciary such as a trustee or executor or administrator will need to contend with issues surrounding the decedent’s ownership of these interests.  It may be that a property is occupied by a third party or family member who needs to be evicted.  Thus, estate litigation in the Surrogate’s Court or other Court may need to be commenced.  Another problem may involve discrepancies in the title of ownership and claims by third parties against the property interests.  Various liens in the form of judgments or unpaid taxes or unpaid mortgages may complicate the estate administration.

It is very common that the estate fiduciary will decide to sell the property interests and distribute the net proceeds to estate beneficiaries.  The ability of the fiduciary to sell property may be limited or constrained based upon the existence of a Last Will or the authority provided to a fiduciary by the Surrogate’s Court in letters testamentary or letters of administration.

TRUST-2-300x115There are many different types of trusts.  A trust may be created as part of the terms of a Last Will and Testament.  Such a trust is known as a testamentary trust.  In these cases, the testator incorporates the trust terms into the dispositive provision in a Will.  For example, a Will may provide that a dollar amount or percentage amount passing under a Will be given to a trustee to hold and administer according to the trust terms which are specifically set forth in the Will.  The language in the Will names the beneficiaries of the trust.  Provisions are usually made for alternate beneficiaries and for successor trustees.

A trust can also be created separate and apart from a Will.  This document also contains the various provisions designating trustees and beneficiaries.

Regardless of the type of trust, it is important that the trust document set forth with clarity the manner in which the trust property is to be paid or applied for the benefit of the trust beneficiaries.  Also, the powers or authority of the trustees should be specified.

Probate-300x201The probate process in New York can appear daunting to persons unfamiliar with the statutes and procedures relating to such matters.  In cases where a person dies and leaves a Last Will and Testament, the Will must be filed with the Surrogate’s Court in order to obtain the Court’s approval that the Will is valid.  Once a Will is admitted to probate, its provisions regarding the disposition of a decedent’s estate control estate settlement.  Where there is no Will, a person is deemed to have died intestate.  Whether an executor or administrator is appointed depends upon the existence of a Will.  The New York Probate Lawyer Blog contains numerous articles concerning estate settlement, Will probate and intestate administration.

As part of the probate proceedings, the petition filed with the Surrogate’s Court must identify all of a decedent’s distributees (next of kin).  These are the individuals who would have a right to receive an intestate share of a decedent’s estate if a Will did not exist.  Distributees must be given notice of the probate case since they have a right to challenge or contest a Will.  A Will Contest can be a very complicated endeavor.  There are various steps which take place which afford a person who wants to contest a Will the opportunity to obtain information regarding the drafting and execution of the Will.  Surrogate’s Court Procedure Act Section 1404 entitled “Witnesses to be examined; proof required” allows distributees to obtain certain discovery information including the deposition testimony of the attorney who drafted a Will and the attesting witnesses who were present at the Will signing.  In addition, various documents concerning a decedent, such as financial records and medical records, can be obtained and reviewed.

An important aspect of filing objections to a Will is that an objectant must have standing to do so.  Not everyone can file objections.  Surrogate’s Court Procedure Act 1410 entitled “Who may file objections to probate of an alleged will” requires that a person must have a financial interest which would be adversely affected by the Will in order to object.  This is a significant requirement.  A recent Suffolk County estate case decided by Suffolk County Surrogate Vincent J. Messina, Jr. on August 8, 2023 concerning the Estate of May Kelman a/k/a May R. Kelman, Deceased, reviewed this issue.

nycSurrogates-1The probate of a Last Will and Testament validates the provisions contained in the Will.  The various Will directions can take many forms.  There can be dispositions of specific dollar amounts to beneficiaries, as well as dispositions based upon a stated percentage or share of the estate or of all assets.  In addition, there may be directions to give a specifically identified asset to a specifically named beneficiary.  Estate settlement and the administration of an estate by the Executors is controlled by the various mandates found in a Will.

Specific dispositions of property may present issues in finalizing an estate.  As a general rule, an executor is not authorized to sell property that is specifically devised or bequeathed to a named beneficiary without authority from the Surrogate’s Court or authority set forth in the terms of a Will.  In the event a fiduciary needs to sell such specifically gifted property to pay estate expenses or other obligations, permission may be obtained from the Court.  It is interesting to note that Surrogate’s Court Procedure Act Section 1412 entitled “Preliminary letters testamentary” grants to a preliminary executor all of the powers of an administrator except that they do not have the power to sell or dispose of specifically devised or bequeathed property without the written consent of the person to whom it was gifted.

There may be situations during the course of estate administration where the restrictions regarding specific dispositions of property impact an estate.  Such a situation recently arose in a Bronx estate and was the subject of a decision by Bronx Surrogate Nelida Malave-Gonzalez in the Estate of Armstrong, decided on July 6, 2023.

When a person dies, one of the initial issues is whether the individual had a Last Will and Testament.  This determination is important because the existence of a Will provides the roadmap for the administration and distribution of a decedent’s estate.  In cases where there is no Will, a person is said to have died intestate and his estate will be distributed according to the intestacy statutes.  Estates, Powers and Trusts Law Section 4-1.1 entitled “Decent and distribution of a decedent’s estate” provides the priority of family members who are entitled to receive estate assets.

Where a Will exists, the document sets forth the manner in which the estate assets are to be distributed.  It also designates the persons who are to act as estate executors and trustees.  The Will provisions may include the creation of a testamentary trust and there may be various bequests and dispositions of real estate.

The New York Probate Lawyer Blog has published many articles concerning the probate of a Will.  A will becomes valid after it is admitted to probate.  The probate process includes the filing with the Surrogate’s Court of various documents including a probate petition, the original Will, and a death certificate.  Sometimes family members may object to a Will and initiate a Will Contest.

nycSurrogatesThe preparation and execution of estate planning documents typically occurs in the State where a person maintains their primary home.  Such location is referred to as a person’s domicile.  Domicile is distinguishable from mere residence.  Someone can have multiple residences, but can have only one domicile.

Estate planning papers can include a Last Will and Testament and a living or revocable trust.  Other documents, such as advance directives like Health Care Proxies and Powers of Attorney may also be created.

It is not unusual for a person to prepare various papers in an estate plan and then move their home to another State or even another country.  Nowadays, after the pandemic and the advent of virtual employment, a person’s domicile or permanent home may change over time.  In situations where there has been a change of domicile, the issue may arise as to the validity of a Will or Trust which was prepared and executed in another state.  It is quite common to see a Will or Trust which needs to be presented to a New York Court which was prepared and signed in another State.  Often these documents, particularly a Trust, contain language which states that the document is to be interpreted and controlled by the laws of the State of origin.

Probate-300x201Probating a Last Will and Testament in New York requires that the Court be satisfied that the Will complies with all the statutory and Court-mandated requirements.  The primary source of reference is Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  This statute sets forth the manner in which a Will must be signed.  For example, the statute says that the Will needs to be signed by the testator at the end of the document.  There is also a requirement that there shall be at least two (2) attesting witnesses who must verify that the testator signed the Will in their presence.  The New York Probate Lawyer Blog has many articles concerning issues that may arise with regard to the execution of a Will and estate settlement.  In most instances, a Will is prepared by an attorney.  It is also usually signed by a testator and witnesses under the supervision of an attorney.  In these cases, there is a presumption that the requirements of the statute regarding proper execution were adhered to.

When someone wishes to contest a New York Will, there are typically a number of grounds which are asserted.  Lack of due execution is one ground, as well as lack of testamentary capacity, undue influence and fraud.  Forgery may also be alleged.  During the probate proceeding, all interested parties are given notice regarding the probate case in Surrogate’s Court.  This allows the parties to file objections to a Will and also to engage in pre-objection disclosure provided by Surrogate’s Court Procedure Act Section 1404 entitled “Witnesses to be examined, proof required.”

This blog recently discussed a situation where a person failed to timely assert rights and then sought to vacate a decree admitting a Will to probate.  Such a situation recently was the subject of a Queens estate case entitled Estate of Cunningham, decided by Queens Surrogate Peter J. Kelly on June 27, 2023.  In Cunningham, although objections to the Will were filed, the objectant failed to oppose a motion for summary judgment which sought to dismiss the objections.  After the motion was granted and a decree admitting the Will to probate was issued, the objectant tried to vacate the decree.

Probate-2-300x200When a person dies and leaves a Last Will and Testament, the next step is to commence a proceeding to probate the Will.  The probate process can be very complicated.  In the first instance, it is important to locate the original of the Last Will and Testament.  When the original document cannot be located and only a copy is available, it is very difficult to complete probate.  Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” must be complied with.  One of the biggest hurdles to overcome is that if the original of the Will was known to have been in the possession of the decedent and cannot be found, then the presumption is that the original Will was revoked.

The probating of a Will in Surrogate’s Court requires that all of the decedent’s next of kin, known as distributees, be notified concerning the Court case.  The reason for such notification is to afford the distributees the opportunity to contest the Will.  In many cases, a distributee agrees to sign a Waiver form consenting to the probate of a Will and the appointment of an executor.  When a Waiver form is not obtained, a proponent of the Will needs to have the Court issue a Citation directed to the non-waiving party.  A Citation is like a summons.  It must be served on a distributee.  The citation has a Court date on which the distributee must appear and tell the Court whether objections to the Will are going to be filed.  If the distributee fails to appear or notify the Surrogate’s Court on the return date, then there is deemed to be a default and the Will is admitted to probate.

When a party defaults in a probate case, it is possible to ask the Court to vacate the default if sufficient reasons are presented.  This situation recently occurred in a Manhattan estate entitled Estate of Frank.  In a decision dated May 25, 2023, Manhattan Surrogate Hilary Gingold granted an application to vacate a probate decree.  It seems that the mother and sole distributee of the decedent had been hospitalized due to an injury which occurred shortly after being served with a Citation.  The injury caused the distributee to be cognitively impaired.

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