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shutterstock_1010278675-300x200In a recent post in the New York Probate Lawyer Blog, we discussed the necessity of reviewing various documents that may have an impact on a person’s estate planning or the administration of his estate.  Such papers would include divorce or matrimonial agreements and business papers.

A recent Manhattan estate case decided by Manhattan Surrogate Nora Anderson on July 6, 2020 provides an excellent example of the need to examine such papers and agreements.  In Estate of Kaufman, the decedent left a Last Will and Testament in which his estate was disposed of between a nephew and another relative.

The decedent was survived by his wife but did not provide for her in his Will.  Prior to his death, the decedent was engaged in a divorce action with the wife.  While the divorce was not finalized before his death, the couple had signed a Stipulation in which the parties divided their marital assets.  The agreement also contained a comprehensive provision by which each waived their rights to share in the other’s estate.

shutterstock_96626983-300x300We know that when a person engages in the process of creating an estate plan, it is important to review all assets that may be part of the disposition framework.  Assets that are owned in a person’s name are typically subject to the provisions of a Will.  The testator creates the planning for the estate by molding intentions around such assets and other property like joint accounts which may pass directly to named beneficiaries.

Similarly, after a person dies, the estate fiduciary, whether an executor or administrator, investigates the ownership of the decedent’s property and collects the estate assets and pays the estate expenses and obligations.  The New York Probate Lawyer Blog contains many informative articles regarding estate settlement.

During the course of administering an estate, the fiduciary must also ascertain whether the decedent was subject to any obligations under various types of lifetime agreements.  These obligations may continue after the decedent’s death and constitute claims against the estate or otherwise affect the distribution of the estate property.  A few examples of such documents and their potential impact will highlight the necessity for a full review during the planning process and post-death settlement of the estate.

shutterstock_548780089-300x200Many decedents’ estates contain assets in the form of real estate.  A decedent may have owned a home or rental property or a commercial building containing a business.  Such items are typically the most valuable items among the decedents’ assets.

If a decedent left a Last Will, such document may provide for the disposition of a specific parcel of real estate to a named person.  When the Will does not contain such a provision or when a decedent dies intestate without a Will, the real property is part of the general estate.  In most of these situations, the property is typically sold to provide for the payment of estate obligations such as an outstanding mortgage or the disposition of funds to a number of estate beneficiaries.  The New York Probate Lawyer Blog contains many articles concerning estate administration.

The sale and closing of real estate by an executor or administrator is usually comparable to the process when a sales transaction is entered into among living individuals.  However, there are a number of important aspects regarding estate closings that should be taken into consideration.  Here are a few important items:

As a Trusts and Estates lawyer in New York, I receive many inquiries from individuals who are concerned about recovering and protecting their estate inheritances.  The administration aspect of an estate generally can be in one of two forms.  There is a probate estate where a decedent dies leaving a Last Will and Testament.  When there is no Will, the estate is the subject of an intestate administration.  The New York Probate Lawyer Blog has published many articles discussing probate and intestacy matters.

When a person believes that a decedent named him as a beneficiary on an account such as a pay on death account or as a designated beneficiary of an asset such as life insurance, the beneficiary should contact the financial institution directly to obtain all details.  Typically, the beneficiary needs to present a death certificate and complete an appropriate death benefit application or withdrawal form.  These papers can be obtained and submitted directly to the bank, insurance company or other institution to claim the inheritance.  There is no need to contact the estate executor or administrator since these types of assets pass outside of the probate or intestate estate.

In some instances, there may be disputes as to whether a proper beneficiary designation form was prepared or filed by a decedent.  These matters may need to be resolved through estate litigation.

shutterstock_204507106-300x254Estate planning in New York is important because it allows a person to create planning documents such as a Last Will and Living Trust.  Advance directives in the form of a Power of Attorney and Health Care Proxy can also be made.  While these papers reflect a person’s intentions regarding the disposition of assets and personal care, they also allow the selection of fiduciaries, such as Executors, Trustees and Agents.

In situations where a Last Will is not in place, a person dies intestate.  As discussed in numerous posts in the New York Probate Lawyer Blog, an intestate decedent’s estate is distributed to his next of kin called distributees.  While the determination of kinship may sometimes be complicated and require the services of genealogists, the selection of the estate Administrator may be equally challenging and contentious.

Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration,” sets forth the right of priority of persons to receive appointment as an administrator of an intestate estate.   As can be expected, a spouse has priority, then children, and then more distant relatives.  Invariably, problems arise when there are multiple candidates occupying a priority class such as children or brothers and sisters.

shutterstock_330039464-300x200A person who is a New York domiciliary typically has his estate administrated in the County Surrogate’s Court where he maintained his home.  Domicile is a person’s primary home as opposed to numerous residences which may be used.

Whether a New York decedent has a probate estate or dies intestate without a Will, primary estate proceedings are filed in New York.  However, it is not uncommon for a decedent to own various forms of property outside of New York.  Administering such assets may be complicated and challenging.

Where an administrator or executor is appointed in New York, such fiduciary generally has the authority to access and collect all of the decedent’s personal property.  For example, the New York executor should have no problem collecting bank accounts or other similar assets that are held in financial institutions in different states such as California.  These institutions may require certain forms and certified documents to be presented but will recognize the authority of the New York fiduciary to close and collect accounts.

shutterstock_635914376-300x144The forum for proceedings regarding a decedent’s estate is typically the Surrogate’s Court.  Probate proceedings and requests for intestate administration are filed in the Surrogate’s Court in the county where the decedent lived.  For example, if the person lived in Manhattan, the estate proceedings would be filed in the New York County Surrogate’s Court.  This would be so even if the individual happened to die in a different location, say on vacation in another state or country.  The New York Probate Lawyer Blog should be referred to for numerous articles regarding estate proceedings.

Sometimes a litigant may want to commence a legal action regarding an estate in Federal Court rather than the local New York Surrogate’s Court.  However, initiating estate cases in Federal Court may be prohibited.  This is due to a well-known Federal Court rule called the Probate Exception.

In order to utilize the Federal Courts, there needs to be a basis for the Federal Court to have jurisdiction.  Basically, there must be a Federal question presented or diversity jurisdiction.  However, even where diversity jurisdiction may exist, the Federal Probate Exception may preclude Federal Court involvement.  This is what occurred in a recent case decided by Federal District Court Judge Kiyo Matsumoto on May 29, 2020 entitled McKie v. Estate of Dickinson.

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Estate planning and creating a Last Will and Testament is important.  However, during the planning process, attention must be given to the eventual probating of the Will.  When a Will is admitted to probate by the Surrogate’s Court, the effect is to validate the terms and provisions in the document.  At that time the executor is granted letters testamentary and can begin the estate settlement process.

The New York estate laws and procedures require that notice of the probate case be provided to the decedent’s heirs at law who are known as distributees.  These persons have a right to object to the probate of the Will.  The New York Probate Lawyer Blog contains many posts with information about probate and many other estate and guardianship issues.

A Will contest is a proceeding that involves extensive estate litigation.  Similar to most types of controversies, the relevant law allows for extensive pre-trial discovery.  Simply put, discovery allows each party to obtain documents and testimony from various sources for the purpose of discovering information and evidence to be potentially presented at a trial or other Court hearing.

20200522-Estate-Planning-300x200Like most things in life, estate planning in New York comes in all different shapes and sizes.  Each person has their own unique situation regarding assets and desires concerning advance directives and post-death distributions.

When reference is made to a so-called non-traditional family, the reality is that in today’s world, nothing is really non-traditional.  However, the reference is important for at least calling attention to situations that require extra care and scrutiny to fulfill estate planning goals.

In a traditional sense, a person will plan for a wife and/or children who are persons that are considered to be next of kin.  Thus, even if there was no Will or other planning documents, such persons would inherit or have other priority rights as primary heirs.  However, when the intention is to benefit others such as unmarried domestic partners or friends, the lack of a properly prepared Will, Health Care Proxy or Power of Attorney can lead to unintended results.  This is due to the fact that the unrelated friend or individual would generally have no statutory priority rights to make lifetime decisions or receive a post-death inheritance.

shutterstock_1010278675-300x200One of the responsibilities of a fiduciary, whether an Executor, Trustee or Administrator, is to discover, administer and protect the assets of an estate or trust.  When assets are in the form of bank accounts or other financial funds, these items can be transferred into a new estate or trust account and controlled thereafter by the fiduciary.

Many trusts and estates own different kinds of assets.  One of the most valuable assets is real estate.  This item may be in the form of residential property such as a single family home or even a condominium.  There may also be vacant land or commercial property.  A very common problem faced by a fiduciary is that a third party is occupying the estate or trust real estate without the right to remain there.  Such improper occupancy can cause problems with the management of the real estate since access to the property may be restricted.  Also, the presence of an authorized occupant may interfere with the sale of the real estate or lower its market value.

In these situations, the fiduciary usually can bring eviction type proceedings in the Surrogate’s Court or the appropriate landlord-tenant Court.  I have represented fiduciaries and occupants in these eviction cases on many occasions.  The New York Probate Lawyer Blog contains many posts dealing with real estate matters and also evictions.

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