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shutterstock_96626974-300x225A New York Executor or Administrator has many duties and obligations.  Among these matters is the necessity to identify, protect and collect estate assets.  The many powers granted to a fiduciary are set forth in Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ powers.”

While collecting assets such as bank accounts and mutual funds is typically routine, there are many situations where asset collection can be difficult and time consuming.  For example, there are many cases where a decedent owned real estate such as a single or multi-family property.  Very often, in order to provide liquidity to satisfy estate debts such as a mortgage or to allow for distributions to a number of beneficiaries, the real property must be sold.  However, there are circumstances which can interfere with a property sale.  The property may be occupied by relatives or third parties who refuse to vacate.  This situation can result in potential damage to the property or a diminution in the value of a sale.  Sometimes real estate cannot be sold at all unless it is vacant.  The New York Probate Lawyer Blog contains many articles discussing the issues associated with estate real estate.

In other cases, property that may be owned by a decedent is held in the name of another party.  These matters necessitate Surrogate’s Court proceedings whereby the administrator or executor initiates proceedings in the Surrogate’s Court to obtain the turnover of the claimed property to the estate.  SCPA Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information,” provides the procedure to discover and enforce title to assets to which an estate claims ownership.

shutterstock_1465659569-300x201The primary guardianship law in New York is contained in Article 81 of the Mental Hygiene Law (“MHL”) which is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.”  The New York Probate Lawyer Blog contains many posts discussing guardianship law and procedure.

When a guardian is appointed, the New York Courts grant an Order which specifies and limits the powers which the guardian can exercise regarding the personal affairs and property management of the incapacitated person.  However, before a guardian is appointed, there are numerous safeguards in the law intended to protect the rights of a person who is alleged to be in need of a guardianship.  The recent case involving Britney Spears, while occurring in a state other than New York, brings to light the importance of adhering to and implementing these safeguards.

For example, before a guardian can be appointed, MHL Section 81.02 requires that the appointment is necessary to provide for someone’s personal and property needs and that the person is incapacitated.  The statute goes on to provide that incapacity must be based upon clear and convincing evidence and show that a person will suffer harm because of their inability to attend to their affairs and that the person does not understand and appreciate their inability to meet their own needs.

original_1074565532-300x107Following a person’s death, the settlement of an estate, and any testamentary trusts which may be involved, typically occurs through proceedings in the Surrogate’s Court.  The New York Probate Lawyer Blog has published numerous articles concerning the probate and administration of estates.  As can be seen from a review of these publications, the types of estate litigation which can occur appears almost endless.

Just to review a few examples, leading the list as far as common recognition is the Will Contest.  In these cases, typically heirs of the decedent who have not received what they believe is appropriate under a Will offered for probate file objections to the Will.  These Will Objections usually focus on lack of due execution, undue influence and lack of testamentary capacity.  The contest of a Will is a long and complicated process which may take years and outcomes are never certain.  If the contestants put forward a viable case, it may very well result in a settlement.

Another very prevalent source of Surrogate’s Court litigation involves determining a decedent’s next of kin.  Kinship proceedings appear in both intestate administration matters and probate.  Both types of proceedings require that the decedent’s next of kin or distributees be accurately and fully identified and brought into the case to assert their rights.  Determining next of kin can be difficult and often requires the services of expert genealogists.

Estate-Settlement-300x200When a person is appointed by the Surrogate’s Court as an Administrator or Executor of a decedent’s estate, he assumes a great deal of powers and responsibilities.  Estates, Powers and Trusts law Section 11-1.1 entitled “Fiduciaries powers” sets forth an extensive statement of authority which an estate fiduciary may exercise.  The statute includes such powers as a right to invest estate property, collect rents, sell property, mortgage property, make repairs, contest or settle claims for the estate and to distribute estate assets, just to name a few of the many areas of authority.

While an executor or administrator may have these numerous powers, there is also a requirement that the fiduciary act properly and responsibly.  If he abuses his powers he may be found to have breached his fiduciary duties and be held personally liable for any loss or damage caused by his actions.

There are many situations where a fiduciary who is settling an estate needs to make decisions but the outcome of his action is not clear.  The fiduciary knows he needs to act but does not want to proceed if things go wrong and he is held to account for any loss or harm to the estate.  For example, an estate may hold property or assets which need to be sold to pay estate obligations or to effectuate distribution to beneficiaries.  The executor or administrator may not know whether the potential sales price is sufficient so as to avoid criticism from the parties interested in the estate.  Obviously, if a fiduciary can obtain pre-sale approval from the Surrogate’s Court, he may be able to avoid estate litigation or a contested accounting proceeding.

Probate-2-300x200When a person dies and leaves a Last Will and Testament, the validity of the document is subject to the probate process.  The estate laws and procedures provide that a probate proceeding be commenced in Surrogate’s Court.  Proceedings for the probate of a Will require that all of a decedent’s next of kin, referred to as distributees, must be provided with notice of the pending case.

In order to obtain Court jurisdiction over distributees, one of two things must occur.  Either a distributee voluntarily appears and oftentimes consents to the probate of the Will, or alternatively, the distributee must be served with a Citation which directs the distributee to appear in Surrogate’s Court and state why the Will should be objected to and denied probate.

Objecting to a Will or a Will contest involves different aspects of investigation.  A recent Queens estate case entitled Matter of Logan, decided by Queens Surrogate Peter Kelly on July 26, 2021, provides an insight into these areas of examination.  In Logan, the Court found that the Will was prepared by an attorney who also supervised the execution of the Will.  Due to these facts, the Court noted that a presumption arose that the Will was duly executed.  Execution of a Will must comply with Estates, Powers and Trusts Law Section 3-2.1, entitled “Execution and attestation of wills; formal requirements.”  The Surrogate pointed out that since the Will also contained an attestation clause and a self-proving affidavit signed by the Will witnesses, a further presumption of due execution existed.

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The administration of an estate in New York requires that the Court find that it has jurisdiction to consider the matter being presented to it.  Whether the case involves the probate of a Last Will and Testament or the settlement of an intestate estate, the Surrogate’s Court must be satisfied that it has the requisite contacts to accept the matter for determination.  Such a decision is controlled by the issue of domicile, since the Court has jurisdiction over a New York domiciliary at the time of death.

Determining domicile is not always easy.  Simply stated, domicile is the place where a person has a permanent home as opposed to a person’s residence.  There can be many residences for a decedent but only one place of domicile.  An individual’s intention is an essential part of finding out where a decedent’s domicile is located and the Surrogate’s Court typically reviews many factors along with the applicable laws and rules.  The New York Probate Lawyer Blog has published many articles regarding estate settlement and domicile.

The complexity involved in determining a decedent’s domicile is shown in a recent Orange County estate case decided by Orange County Surrogate Timothy McElduff on July 20, 2021 entitled Matter of Estate of Matarazzo.  In this case, the decedent died in 2020.  She had lived for many years in Malverne, New York, but sold her New York home in 2015 and then went to live with a son in New Jersey.  However, she used the address of another son in Greenwood Lake, New York to receive correspondence and file New York tax returns.  In 2018, the decedent began to reside in a senior center in Pennsylvania, where she continued to reside until her death in 2020.

original_1074565532-300x107There are many factors to be considered in connection with the appointment of a Guardian for personal needs and property management pursuant to Article 81 of the Mental Hygiene Law.  A recent post in the New York Probate Lawyer Blog discussed the requirement that clear and convincing evidence be presented before a Guardian is appointed.  A recent Guardianship case entitled Matter of Elias B. decided by Broome County Supreme Court Justice David Guy on June 30, 2021 highlights the many considerations a Court needs to review in a Guardianship case.

In Elias, the alleged incapacitated person (AIP) had been hospitalized but was now ready for discharge.  It appeared that the AIP was a developmentally disabled person who had lived in the community for a number of years and had received local social services assistance.  However, the AIP had been unable to maintain a permanent living situation, but could find his way to receive medical and social services assistance, despite his transient existence.  The Court found that the AIP could attend to some, but not all, of his activities of daily living.

It appears that as part of its discharge plan, the only housing facility that the hospital could find which would accept the AIP was located in New Jersey.  The AIP refused to go to live in this location and the hospital could not otherwise discharge him without an established living environment.  Thus, the hospital sought the appointment of a Guardian to assist with the AIP’s discharge and relocation.

shutterstock_1465659569-300x201Article 81 of the Mental Hygiene Law provides the statutes regarding the appointment of a property management and personal needs Guardian.

A Guardianship lawyer is aware that these proceedings focus on a number of factors before a Court determines that a Guardian should be provided.

First and foremost, the inquiry concerns the ability of the alleged incapacitated person (“AIP”) to handle his affairs.  This examination focuses on the AIP’s functional abilities commonly referred to as the activities of daily living.  Thus, a full review of the ability of the AIP to engage in functions such as personal hygiene, attending to personal health decisions, domestic functions such as cleaning and caring for a residence, engaging in financial matters such as paying bills, understanding the nature and extent of assets and appropriately dealing with everyday matters.  As set forth in MHL Section 81.02, a Court can appoint a Guardian if it finds that it is necessary to provide for a person’s personal and financial needs, and that a person would suffer harm because they cannot provide for such needs and do not understand and appreciate that they are suffering from such disability.  The New York Probate Lawyer Blog has published many articles concerning Guardianship matters.

shutterstock_1554045275-300x185The settlement of a New York estate can be very complicated and involve many different issues.  In fact, due to various problems, some estates may take years for estate settlement.  However, there are three basic components to the process of administering an estate.

First, there are proceedings concerning the appointment of a fiduciary such as an Executor or an Administrator.  When a decedent leaves a Last Will and Testament, a probate proceeding is initiated to have an Executor appointed.  When a Will is admitted to probate the Court issues letters testamentary to the appointed fiduciary.

If a decedent dies intestate, then a petition for letters of administration is filed with the Surrogate’s Court.  Letters of Administration are granted to the appointed estate administrator.  The New York Probate Lawyer Blog contains numerous posts regarding probate and intestate estate administration.

shutterstock_571088005-300x200Estate planning is very important and may be accomplished by the creation of a number of documents.  These papers include a Last Will and Testament and a lifetime trust which may be revocable or irrevocable.  Advance directives in the nature of a Living Will, Power of Attorney and Health Care Proxy may also be considered as part of an overall plan.  The New York Probate Lawyer Blog contains numerous posts dealing with planning an estate in New York.

Due to changing circumstances, a Will or a trust may need to be modified.  Such circumstances may include the death or incapacity of either a beneficiary or a nominated fiduciary such as an Executor or Trustee.  Additionally, a person’s intentions regarding beneficiaries may require a change in dispositions or a person’s assets may have declined, increased or changed requiring new Will or trust provisions.

In any event, when the time comes to revise a document, there are a few important points to consider.  To begin with, a Will can be modified simply by preparing a new Will and having it executed and witnessed in accordance with the New York laws contained in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills;  formal requirements.”  It is generally insufficient to just place corrections, markings or cross-outs on the original.  The Courts most likely are going to ignore these attempted corrections on the face of a Will unless they happen to be done in accordance with the above statute; i.e., duly executed and witnessed.  Therefore, it is best to have an experienced estate lawyer assist with any contemplated revisions.

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