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shutterstock_96626974-300x225After the death of a decedent, a proceeding may be commenced to probate a Last Will and Testament.  Probate proceedings are filed in Surrogate’s Court in the county where the decedent resided.

Various individuals may want to contest the Will.  Most commonly, objectants are the decedent’s distributees or next of kin who feel that the Will is invalid for one reason or another.  Surrogate’s Court Procedure Act (SCPA) Section 1410 entitled “Who may file objections to probate of an alleged will” delineates the persons who have such rights.  Clearly, an heir at law may engage in a contest since they most likely would be adversely affected by a Will which may diminish or eliminate their intestate share.

The New York Probate Lawyer Blog contains many posts about Will contests and Surrogate’s Court litigation.  These types of cases are usually very difficult because the Surrogate’s Courts tend to prefer that a decedent’s wishes as expressed in a written Will be given effect.  Also, a document that is prepared and signed under attorney supervision is given certain presumptions of legitimacy.  A recent Manhattan estate case decided by Manhattan Surrogate Nora Anderson on October 30, 2020 provides a simple example of such a situation.  In Estate of Memeh, the Court dismissed objections to the probate of the Will.  The various points made by the Court included the following:

shutterstock_548780089-300x200Time after time, estate executors and administrators seem to be confronted by a common problem – the sale of estate realty occupied by a family member.  The duty or obligation of the estate fiduciary is to collect and protect the estate assets and satisfy the decedent’s debts and obligations and finally, to effectuate distribution of estate assets according to the provisions of a Last Will and Testament or the laws of intestacy.  The many facets of estate settlement have been discussed in numerous articles posted in the New York Probate Lawyer Blog.

Real estate, typically the residence of the decedent, is the largest asset in an estate.  Very often after the death of the decedent, the residence continues to be occupied by a family member or a third party.  When the real estate must or should be liquidated to allow an estate to be administered and finalized, the individuals remaining in occupancy must be evicted.  As is commonly known, evicting persons from their homes is neither pleasant nor easy.

In the case of a decedent’s estate, commencing summary proceedings in the local landlord tenant Court may be the most efficient avenue as to non-related third-party occupants.  However, when a case involves relatives or estate beneficiaries, the Surrogate’s Court procedures often offer a more accommodating forum.  Depending upon the preferences of the local court, a proceeding to remove an occupant from estate property may be commenced in the form of a turn-over proceeding or possibly as an ejectment case.  Article 19 of the Surrogate’s Court Procedure Act entitled “Disposition of Real Property” also provides a procedure to have the Court direct a sale or disposition of the realty.  My Blog, referred to above, has discussed these eviction matters in earlier posts.

shutterstock_1465659569-300x201Article 81 of the Mental Hygiene Law provides the procedures and requirements regarding guardianship of an incapacitated person.  The statute allows for the appointment of a guardian for property management and for personal needs.  Whether or not a person requires a guardian is determined by the Court after a hearing.  One of central inquiries when determining incapacity is the extent to which the alleged incapacitated person can perform activities of daily living such as caring for personal hygiene, banking and financial affairs and other ordinary and regular daily living functions.  The New York Probate Lawyer Blog has published numerous articles about guardianship and the Court proceedings for appointment.

A guardian, like all fiduciaries, has duties and responsibilities.  If any of these obligations are breached, the guardian may be held personally responsible.  The guardian can also be discharged.  There is a duty to provide the Court with a full annual accounting of guardianship activities.  MHL Section 81.31 entitled “Annual report” states that the guardian must file a report with the Court every May.  The statute delineates the information that must be included in the report.  The Court, through a Court Examiner, reviews each accounting and either approves it or asks the guardian for additional information.  The Court Examiner may seek Court intervention if the guardian is not acting or reporting properly.  The Court’s primary goal is to insure that the interests of the incapacitated person are protected.  The Court Examiner typically will review all of the guardian’s information including bank statements and financial records to make certain that the information in the report is accurate and authentic.

The guardian’s duty to account and the Court Examiner’s review were recently discussed in a Queens guardianship case entitled Matter of Soifer.  This case was decided by Queens Supreme Court Justice Bernice Siegel on October 29, 2020.  In Soifer, the incapacitated person’s cousin had been acting as guardian.  The Court Examiner raised a concern with the Court because the cousin was also a trustee of a trust that was created for the incapacitated person’s benefit under her mother’s Last Will.  The cousin was a remainder beneficiary of the trust.  The Court Examiner felt that the cousin’s role as Court appointed guardian and trustee / beneficiary under the Will created a conflict of interest.

shutterstock_538370872-300x200The settlement of an estate typically focuses on the protection and collection of estate assets.  These assets may include bank accounts, retirement funds and other financial holdings.  However, the major asset in most estates is an interest in real estate.  Real estate may be in the form of a single family home, a multi-family residential building, commercial property or even a condominium unit.  While a cooperative apartment is not real property, since the interest is in the cooperative corporation, its value and ownership are generally equivalent to real estate holdings.

The decedent’s interest in real property is determined by the ownership document existing at the time of death.  This is typically a deed.  A deed can show different types of ownership interests.  The decedent may own a property as a joint tenant with a right of survivorship or he may just own the property in his name alone.

Problems arise when an estate property is held in the name of a number of owners as tenants in common.  In such a case, the decedent’s interest passes to his beneficiaries who then own the property along with the other owners, all as tenants in common.

original_1074565532-300x107The surviving spouse of a decedent is afforded numerous post-death rights.  At the most basic level, where the decedent did not have a Last Will and Testament, pursuant to Estates Powers and Trusts Law Section 4-1.1, the surviving spouse is entitled to be paid the entire intestate estate or at least the first $50,000.00 of the intestate estate along with fifty percent (50%) of any sums in excess of such amount when there are surviving children.

In some cases, a decedent’s assets consist of items that are part of either an intestate or testate estate (administration or probate).  These items are owned by the decedent in his name alone.  However, a part of the estate may pass directly to named beneficiaries or joint owners.  These items do not pass through the portion of the estate controlled by the estate executor or administrator.

In order to protect a spouse’s post-death interest, Estates, Powers and Trusts Law Section 5-1.1-A, entitled “Right of election by surviving spouse,” gives the spouse a right to receive at least one-third of a decedent’s net estate.  This statute prevents one spouse from disinheriting the other by leaving all of his assets directly to a third party through beneficiary designations or similar transfers.  The New York Probate Lawyer Blog has reviewed this statute in numerous articles.

shutterstock_434643370-300x225In situations where a decedent does not leave a Last Will and Testament, the Court must be satisfied that it has received complete kinship information.  This is because both the appointment of the estate administrator and the ultimate distribution of estate assets are based upon identifying the decedent’s next of kin or distributees.

Most of the time, it will not be difficult to certify the identities of the decedent’s distributees.  There may be a surviving spouse and children born during the marriage.  However, particular issues arise when an alleged child is born outside of a marriage and the claims of inheritance relate to a deceased father.  In order to inherit from a deceased father, a child must prove paternity.  New York estate law provides a specific statute to cover this issue.  Estates, Powers and Trusts Law Section 4-1.2, entitled “Inheritance by non-marital children,” sets forth the details required for determining whether a non-marital child is a legitimate child of his father.  The New York Probate Lawyer Blog has published numerous articles concerning this issue.

Interestingly, the statute begins by providing that a non-marital child “is the legitimate child of his mother” for purposes of inheritance.  However, when it comes to paternity, there are a number of avenues of proof that can be utilized.  One of the most common ways of demonstrating paternity is by showing through clear and convincing evidence that the father “openly and notoriously acknowledged the child as his own.”

1216424_supreme_court_new_yorkDuring the course of estate administration, the beneficiaries of an estate may need to wait many months or even years before their beneficial interests are paid.  In many instances a lengthy delay may cause a hardship to a beneficiary, especially when the beneficiary was dependent upon the decedent for support or the decedent’s death impacted the financial stability of the beneficiary.

In many cases of estate administration, the executor or administrator or preliminary appointee may voluntarily make an advance distribution to a person who is in need.  This tends to be a common occurrence when all of the interested parties are cooperative and there is no contentious estate litigation occurring.  However, when a fiduciary refuses to help a beneficiary who is in need, the Surrogate’s Court Procedure Act provides a procedure whereby an application can be made to the Court for an advance distribution.

SCPA 2102 entitled “Proceedings for relief against a fiduciary” contains a paragraph 5 which allows the commencement of a proceeding to force the payment in advance of an estate share when the estate “exceeds by at least one-third” the sum needed to pay other claims, debts and legacies.  The applicant must demonstrate that such payment is required for his education or support for him or his family.  This statute gives parties interested in an estate an important right to maintain financial stability during a long period of estate settlement.

The executors and administrators of a New York estate have a fiduciary responsibility to collect and protect estate assets.  In the event these fiduciaries fail to act in a responsible manner, the administrator or executor’s malfeasance would constitute a breach of fiduciary duty.

When a situation arises where it appears a third party is withholding assets that belong to a decedent’s estate, it is the responsibility of the fiduciary to pursue the recovery of the property or the value thereof.  Fortunately, the Surrogate’s Court Procedure Act provides a statutory procedure to obtain recovery of the property of an estate.  The rules and procedures are contained in SCPA Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information.”  This section of the law, along with SCPA Section 2104, entitled “Inquiry; trial and decree,” give the estate representatives broad discovery to ferret out information about possible estate assets and to prosecute a hearing or trial for return of the property.  The New York Probate Lawyer Blog has discussed these discovery and turnover proceedings in many posts over the years.

The Surrogate’s Court routinely has these matters appear on the Court calendars.  I have represented many clients in such proceedings.  A recent Albany estate case provides yet another insight into such matters.  In Matter of Mahoney, decided on August 8, 2018 by Albany Surrogate Stacy Petit, the executors of an estate sought to recover claimed estate assets including bank funds which the decedent had transferred to her long-time friend while she was still alive.  An interesting part of the case was that the bank transfer occurred with telephone authorization by the decedent.  While the executors argued that it was not common for the decedent to transfer funds by telephone authorization, the Court found that the overall evidence did not show such transaction would not have taken place.  Particularly, it seems the friend needed the funds sent quickly to complete a purchase.  After reviewing all of the facts, the Court rejected the executor’s claims and found that the bank funds were not assets of the decedent since they were properly transferred prior to her death.

Probate-2-300x200It is an important role of estate planning to prepare a Last Will and Testament.  This document allows a testator to set forth in various provisions his desires as to the disposition of his estate.  Once a Will is admitted to probate, the terms become validated and the testator’s estate plan is effectuated.  It is then subject to being finalized by the executor settling the estate.

As has been discussed in a number of articles in the New York Probate Lawyer Blog, that the Surrogate’s Court requires that the original Will be filed as part of the petition for probate.  The Court needs to see the original signatures of the testator and the attesting witnesses, as well as the Will provisions.  Unfortunately, it is a common occurrence that after a testator dies, the original Will cannot be located.  Instead, usually a copy of a Will is found.  In these circumstances, Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” must be referred to in order to resolve the issue regarding the probate of the copy.

A recent decision in a Manhattan estate case provides a good example of the issues presented in these types of cases.  Estate of Rothberg was decided by Manhattan Surrogate Rita Mella on September 25, 2020.  In Rothberg, the decedent’s son petitioned to probate a lost Will.  He was the sole residuary beneficiary and the named executor.  The proceeding was uncontested.  Apparently, after the decedent’s death, the petitioner-son received the original Will from the decedent’s attorney.  However, prior to filing it with the Court, the son lost the original.  There is a presumption that a Will that cannot be located after death was destroyed by a decedent with an intention to revoke it.  However, the Court in Rothberg noted that such presumption does not exist if the attorney had possession of the Will.

20200522-Estate-Planning-300x200Estate planning in New York involves the preparation of different documents.  These include a Last Will and Testament, Living Will, Living Trust, Power of Attorney and Health Care Proxy.  All of these papers have terms and language which should be clear and specific so that the writer’s intentions are precisely spelled out.

In particular, a Will can have numerous provisions that involve descriptions of property being disposed of and identification of beneficiaries who are to receive benefits pursuant to the document.  The New York Probate Lawyer Blog has published many posts regarding Wills and estate planning and the need for proper drafting.

Some of the considerations that need to be taken into account include the recognition that a Will may describe property that is being disposed of.  Such property may be tangible items like pieces of jewelry or furniture.  Other types of assets may include real estate or business interests.  In all these situations it is important to take extra care to describe the gift with precision.  The last thing a testator should want is for beneficiaries to engage in post-death Surrogate’s Court litigation as to which item owned by the testator was given to them.  For example, a bequest of my “gold watch” is not helpful if the testator owned multiple gold watches.

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