New York Probate Lawyer Blog

March 12, 2026

When Should a Surviving Spouse File a New York Spousal Right of Election

The settlement of a New York estate occurs in a number of different contexts. If a Decedent dies and leaves a Last Will and Testament then the probate process begins to have the Will admitted to probate. A petition for probate is filed with the Surrogate’s Court along with the necessary supporting papers. In the event a Decedent dies intestate without a Will, then an Administration proceeding must be commenced to obtain the appointment of an Administrator and the issuance of Letters of Administration.

In all of the above situations, if a Decedent is survived by a spouse, an immediate question arises as to the nature and value of the interest which is to be distributed to a surviving spouse. In the case of a Will, the document must be examined to see what provisions have been made for the spouse. Where there is an intestacy, Estates, Powers & Trusts Law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides that a surviving spouse is entitled to receive the first $50,000.00 plus one-half of the balance of the estate.

The determination of spousal rights gets very complicated by the fact that pursuant to EPTL 5-1. 1A entitled “Right of election by surviving spouse” a surviving spouse is guaranteed to receive at least one-third (1/3) of a Decedent’s net estate. To complicate matters even more, the calculation of the spousal right of election includes assets which are called Testamentary Substitutes. These assets include items such as joint assets and assets which pass outside of the probate and administration estates to third party beneficiaries. As can be imagined, the determination of all of these assets and the calculation of the overall spousal share can be filled with complexity. For example, it may be that the provisions for a spouse under a Will are less than what a spouse would receive by asserting her claim to a spousal election. In such a case the election can be used to increase the amount of assets to be received by the spouse.

February 17, 2026

New York Intestate Laws- Why There Are Strict Rules Regarding Kinship and Intestate Rights

by Jules M. Haas

For many years the New York Probate Lawyer Blog has published articles regarding the settlement of a New York estate. When a person dies and leaves a Last Will and Testament, the Will must proceed through the probate process to become validated and enforceable. A probate petition is filed in the appropriate Surrogate’s Court and next of kin (“distributees”) are given notice through a Citation as to their rights to accept the document or contest the Will.

When a decedent fails to have a Will, he is deemed to have died intestate. According to Surrogate’s Court Procedure Act (SCPA) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” a priority list of individuals is named who are determined to have the right to inherit the estate assets. Similarly, SCPA Section 1001 provides a similar priority list of the persons who have the right to be appointed as the Administrator of the estate. Demonstrating that you have the statutory right to inherit and/or be appointed as the estate fiduciary is imperative regarding your ability to be involved in intestate estate affairs.

For example, I have represented clients as a New York estate lawyer for more than 40 years. During that time, I have encountered many individuals who maintained long-term relationships with a Decedent but were not related by blood such as a companion or friend. However, since the Decedent did not leave a Last Will, such individuals have no standing as a distributee to share in the estate or even act as an Administrator. Such a situation exists despite the fact that a Decedent may actually have been estranged from his blood relatives.

February 5, 2026

Removal of a New York Executor or Administrator- Specific Facts and Acts Are Essential

by Jules M. Haas

The appointment of an Executor or Administrator of an estate begins the process of the settlement of an estate. An Executor is appointed when a decedent leaves a Last Will and Testament which has been admitted to Probate in the Surrogate’s Court. There are Surrogate’s Court’s throughout New York State including the New York County (Manhattan) Surrogate’s Court, the Bronx County Surrogate’s Court, the Kings County (Brooklyn) Surrogate’s Court and the Queens County Surrogate’s Court. An Administrator is appointed when a Decedent does not have a Will and dies intestate. In these cases a Decedent’s distributees (heirs at law) inherit the estate. The New York Probate Lawyer Blog contains many articles regarding estates and fiduciaries.

The Court appointed Administrator or Executor and also Trustees have many obligations and powers. The obligations include duties of fairness to beneficiaries and to not take advantage of the appointment to benefit themself. A fiduciary cannot comingle estate or trust funds with his personal funds and cannot use fiduciary assets for personal purposes or personal expenses. A fiduciary has many powers which are given by the Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ powers”.

As a trusts and estates lawyer for over 45 years, I have encountered many situations where an issue arises concerning fiduciary conduct and whether the appointment of a fiduciary should be revoked by a Court. These cases can be very complicated. The Court requires that specific acts and facts of wrongdoing be shown for removal. It is not enough for a beneficiary just to say that he does not like or get along with the executor or trustee.

January 29, 2026

Undue Influence and New York Wills-Some Important Considerations

by Jules M. Haas

A Last Will and Testament is an important document since it is meant to express in writing a person’s disposition of his estate. A Will is an embodiment of a testator’s intentions. The document may contain many different provisions and dispositions of assets. For example, there may be legacies disposing of a specific amount of money to a beneficiary or a specific personal asset such as jewelry or art-work. Also, specific devises of real property may be made. A Will can contain testamentary trusts or other trusts such as a supplemental needs trust. A testator typically includes provisions nominating executors, trustees and guardians for children.

As discussed, in many articles in the New York Probate Lawyer Blog, a Will must be filed in the Surrogate’s Court and go through the probate process. Once a Will is admitted to probate, it has been validated by the Court and its terms and provisions must be adhered to by the appointed Executor.

During the probate proceeding various individuals may object to the probate of a Will. Usually distributees (i.e. next of kin) have a right to file objections to a Will although persons whose interests from a prior Will which have been adversely affected may also be entitled to file objections. The basis for objections include improper execution, lack of testamentary capacity and undue influence. These objections result in a Contested Will.

January 23, 2026

New York Article 81 Guardianship- Nick Reiner Was The Subject of a California Conservatorship

by Jules M. Haas

The recent news regarding the alleged murder of entertainment personality Rob Reiner and his spouse, Michele, by their son, Nick Reiner, was startling. One of the immediate questions which arose is what could motivate Nick, the son of such well-known parents, to allegedly cause them deadly harm.

An insight into the family dynamic may be found in the recent disclosure that Nick was the subject of a Court directed conservatorship in 2020. As reported in an article by Winston Cho in The Hollywood Reporter on January 16, 2026 entitled “Nick Reiner’s Mental Health Conservatorship Could Complicate Prosecution”, Nick was the subject of a conservatorship which is utilized for individuals with serious mental illness and allows for involuntary psychiatric care. Apparently, the conservatorship ended in 2021.

In New York, there is no so-called conservatorship. Such phraseology ended years ago. Article 81 of the New York Mental Hygiene Law refers to individuals as being incapacitated persons or alleged incompetent persons. The New York Court, upon a finding of incapacity, will appoint a Guardian for personal needs and/or property management. Essentially, incapacity requires that an individual is suffering from some condition which prevents them from handling their affairs and they cannot appreciate the situation and are, thus, at risk.

January 21, 2026

Estate Planning and Divorce- The Late Actress Shannon Doherty Case

by Jules M. Haas

Obtaining a divorce and creating an Estate Plan seem at first to be two separate unrelated activities. However, on more than one level, a divorce or contentious matrimonial situation leads directly to the need for effective planning of an estate and possible probate or estate litigation.

Of course, in a typical marital split, it is essential that property ownership documents such as deeds, financial accounts and retirement funds be amended to reflect the marital split and also comport with property settlement agreements. In this regard, pre-existing Last Wills and Trusts should be reviewed, as well as beneficiary designations, so that a divorced spouse is not named in a way which no longer is desired.

While the above appears to be basic considerations, there are occasions where documents and ownership rights are neglected after a divorce leading to confusion and unwanted results. Equally important is examining the effects of a matrimonial situation before a final resolution. Spouses while still married have certain rights to share in a Decedent’s estate. If a divorce is not final, a disinherited spouse in New York still has a Right of Election to obtain one-third of an estate and certain other property owned by a deceased spouse.

January 5, 2026

A New York Decedent’s Estate Which Owns Real Estate May be Subject to Foreclosure

by Jules M. Haas

For many New York estates, real estate is the most valuable asset. This is true whether a decedent dies with a Last Will and Testament or Intestate (without a Will). If a Last Will exists, the person nominated as Executor has the task of petitioning the Surrogate’s Court to admit the Will to probate and having Letters Testamentary issued to the Executor. In the case of intestacy, next of kin who are the decedent’s heirs have the right, pursuant to Surrogate’s Court Procedure Act section 1001 entitled “Order of priority for granting letters of administration”, to be appointed as the estate’s Administrator and receive Letters of Administration. The New York Probate Lawyer Blog has published numerous articles concerning probate and intestate administration.

In over 40 years of representing individuals in trust and estate cases, I regularly represent estates where real estate assets are subject to foreclosure actions. Foreclosure occurs for many reasons. Sometimes no one steps forward after a death to obtain the appointment of a fiduciary or keep the mortgage payments current. On occasion, a decedent may have been ill or in financial difficulty prior to death resulting in the foreclosure. In any event, following a death there may be mounting pressure from the foreclosing bank to satisfy the loan or lose the property to a foreclosure Court sale. This is complicated even more when a property may not be able to be sold until final authorization is obtained from a Surrogate’s Court which must appoint a fiduciary or approve a sales contract.

The rules and procedures in estate cases and foreclosure actions can be complicated. Unfortunately, these matters are occurring in separate Courts with different Judges who are not overseeing the entire process. Thus, the intervention of an experienced estate and real estate attorney may be essential for coordinating the various legal proceedings and protecting the estate assets. The typical goal is to sell the estate property before a foreclosure is finalized and a bank sells a property at auction. I have dealt with these issues on many occasions.

December 17, 2025

When A Person Dies in New York – Who Owns The Real Estate

by Jules M. Haas

The settling of a decedent’s estate in New York may involve multiple issues. At the outset, a determination needs to be made as to whether a decedent died intestate (i.e. with a Last Will and Testament) or intestate (no Will). This determination then governs as to whether a Probate proceeding or Intestate Administration proceeding is to be filed with the local Surrogate’s Court. Each type of proceeding has its own very special Court processes and issues. For example, in a Probate Proceeding it is important to locate and file a decedent’s original Last Will. If the original document cannot be located, it is possible to probate a copy of a Will. However, a proceeding to probate a copy of a Will where the original has been lost is exceedingly difficult. Where the original document is known to have been in the possession of a decedent, there is a presentation that it was a decedent’s intention to revoke the Will if the original is missing. The New York Probate Lawyer Blog has published numerous articles concerning probate, intestate administration and other estate and trust issues.

Many estates contain interests in real property. The most common situation is the home where a decedent lived. At the time of death, it is imperative that a search be performed to determine the ownership of the property. A quick review of the property deed is helpful. In New York City there is a website called ACRIS which contains copies of deeds and other real estate filings. A search of the deed may show that a property is owned solely by a decedent. In such cases, the property would pass according to a Last Will or the laws of Intestacy. In intestacy, a decedent’s next of kin or distributees would become the property owners. If there is a Will, the document would specify how the real estate is to be disposed of.

A search of the property records may also show that a property is owned by a number of other individuals along with a decedent as tenants in common. In other words, each person, as well as a decedent, may own a share of a property, say twenty percent. Also, a deed may provide that a decedent owns a home with a spouse as tenants by the entirety or with one or more other individuals as joint tenants with rights of survivorship. In these later cases, the property ownership would pass automatically on death to the surviving spouse or joint owners. The property would not be controlled by a Last Will nor would it pass to the next of kin. Thus, a devise of a survivorship property in a Will would be ineffective.

December 4, 2025

A Guardian May Make Gifts of a Ward’s Property

by Jules M. Haas

When the term Guardianship is referred to, a general perception is that someone is appointed to take charge of the affairs of an individual who is incapable of handling his own matters. While this general perception is accurate, it does not really identify the existing Guardianship laws and procedures which exist in New York. Guardianship law in New York can be very complicated and perplexing. The New York Probate Lawyer Blog has published many articles discussing Guardianship issues.

There are two statutes which provide a framework for the Guardianship appointment. Article 81 of the Mental Hygiene Law sets out the manner by which a Guardian can be appointed for an adult. The foundation of this law is the determination of incapacity. Incapacity is demonstrated by a review of someone’s functionality and their ability to handle their activities of daily living. A finding of incapacity requires that the alleged incapacitated person cannot take care of their personal needs and/or property management and does not appreciate their disability and as a result would suffer harm if no Guardian is appointed.

Although Article 81 provides a Court appointed Guardian with many possible powers, a key aspect of this law is that the Court is provided with great discretion to adjust and limit Guardianship powers to meet the requirements of the situation. The overriding sentiment is that the Court should impose the least restrictive means to accomplish the needs of a person and afford them the greatest liberty possible.

November 20, 2025

Real Estate In Estate Settlement – Mortgages and Other Liens Can Cause Problems

by Jules M. Haas

The assets which may be owned by a Decedent can take many forms. There may be financial items such as bank accounts or brokerage accounts. These can be pure savings held in a Decedent’s name or retirement savings in the form of Individual Retirement Accounts, a 401K or other pension type plan. Sometimes there is life insurance. However, it must be remembered that only assets held in a Decedent’s name alone will be in an estate. If there are named beneficiaries or joint survivorship owners, such assets will be paid directly to the beneficiary or survivor without passing through an estate. The New York Probate Lawyer Blog has published many articles discussing estate settlement.

Estate assets will come under the control of either an Administrator or Executor depending upon whether or not a Decedent died leaving a Last Will and Testament. In either case, one of the most valuable assets owned by a Decedent is real estate. Real property can be in the form of a personal residence or commercial property. A condominium unit is real property. A cooperative apartment is not real property since the ownership is the shares of stock in the cooperative corporation. However, in many ways co-ops appear to be real estate.

It is not uncommon for a real estate asset to be encumbered by a mortgage. Mortgages can take many forms. There can be the typical home loan. Also, there may be a Reverse Mortgage or a Home Equity Line of Credit. In all these situations an Executor or Administrator is faced with the task of paying or satisfying these loans during the course of estate administration. Payment of ongoing or monthly charges may be difficult or impossible if an estate does not have any liquid funds. If the property is difficult to sell or if other circumstances interfere with its sale, a lender may seek to foreclosure. Circumstances such as tenants or occupants refusing to give up possession or a delay in obtaining Court authorization for a fiduciary to act may cause complications. Dealing with a foreclosure where a lender is seeking to obtain a judgment and sale can result in a lot of stress on a fiduciary who wants to protect a valuable asset.