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There are many different proceedings in the Surrogate’s Court.  Such matters include the following:  probate proceedings, administration proceedings, accounting proceedings, and kinship hearings to name a few.  It is not uncommon in these cases for there to be estate litigation or controversies regarding the issues being presented to the Court.  For example, when a Last Will and Testament is being offered for probate it is possible that an interested party may contest the Will.

Similarly, when a person dies intestate and someone files an administration proceeding to be appointed as the estate administrator, questions may arise as to the kinship of the decedent.  There may even be a necessity to hold a kinship hearing to resolve this question.  There may also be a dispute as to which family member should be appointed as the administrator.  The New York Probate Lawyer Blog has posted many articles regarding probate and administration matters and various types of Surrogate’s Court litigation.

The vast majority of contested and litigated matters in the Court are ultimately settled between the interested parties. New York Civil Practice Law and Rules Section 2104 entitled “Stipulations” contains requirements for stipulations to be enforceable.  Settlements are favored by the Court and are usually advantageous to the individuals involved in a case.  There are many reasons that favor a negotiated settlement.  First and foremost, the outcome of litigation is typically uncertain.  Therefore, rather than risk an all or nothing approach, each side ultimately accepts a resolution that provides them with a benefit although somewhat less than what might have been received if the case was ultimately won.  This avoids the risk of a total loss.  Also, Court proceedings can be exceedingly lengthy.  The time for a matter to progress through the judicial system can take years.  Sometimes it is better to accept an early resolution rather than wait for an extended period of time to reach an uncertain result.  Estate settlement may be delayed.

All of a sudden you are asked to be the Executor or Administrator of an estate.  Most people have never acted in such a capacity and do not have any experience as to the responsibilities and tasks that lie ahead.  They may be reluctant or even afraid to accept the appointment.  While taking on this role may appear to be daunting, moving forward one step at a time with proper information is the best way to proceed.  Here are a few initial suggestions.

  1. Do Some Research And Seek Professional Guidance. It never hurts to research the internet or other sources to learn about the role of an Administrator or Executor.  An Administrator is appointed when a person dies intestate without a Will.  An Executor is someone who is nominated in a Last Will and Testament. The appointment becomes official after the Will is admitted to probate. Other family members and friends may have been appointed in past matters and they can provide some insight.  Internet sources such as The New York Probate Lawyer Blog contain many articles explaining estate issues.  Also, Estate Lawyers can provide invaluable guidance and insight into the Surrogate’s Court process and how a fiduciary is appointed and estate settlement takes place.  I speak with many people each week regarding and discussing these issues.
  2. Understand The Need for An Estate Fiduciary. The fiduciary is basically the Chief Officer for an estate.  He or she collects the estate assets, pays the bills, taxes and expenses and ultimately distributes the assets to the estate beneficiaries in accordance with the estate laws and documents.  There are numerous fiduciary duties and obligations.  If the decedent owned real estate such as a residence, the fiduciary may need to sell the house and pay off a mortgage.  Bank accounts owned by the decedent need to be closed and an estate bank account must be created. The decedent’s affairs cannot be resolved without proper administration.  I handle all of these matters with my clients.

I have published the New York Probate Lawyer Blog for many years with the goal of providing the internet community with New York Estate Planning, Probate, Surrogate’s Court and Guardianship information.  My blog, along with my website, contains hundreds of pages of helpful data obtained over my 40 years of representing clients in these areas of the law.

The COVID-19 pandemic presents a brand-new experience for me and for my clients and the internet community.  However, despite being temporarily unable to physically go into my midtown Manhattan office, I am ready, willing and able, as always, to provide free consultations and formal representation to assist with matters that are very personal and important to clients and the community.  Do not hesitate to call or email me.

Over the years I have helped countless individuals and families prepare their estate plans, probate a loved one’s Last Will, obtain an Administrator for an intestate estate, establish kinship, contest a Will and obtain a Guardian for an incapacitated person.

One tends to view New York Estate cases and Guardianship cases as completely separate matters.  In an Estate, a person dies, and his Last Will and Testament is probated, or an administration proceeding is needed for an intestacy.  In contrast a Guardianship proceeding is commenced while a person is alive.  The goal is to have a Guardian appointed for the person and property of someone who is incapacitated.  The New York Probate Lawyer Blog has published many articles concerning both Estate and Guardianship issues.

As an Estate and Guardianship attorney for 40 years I have encountered many situations where Guardianships and Estates intersect.  In fact, the coalescing of these matters is rather common.  For instance, a person may become incapacitated and require the appointment of a Guardian.  Article 81 of the Mental Hygiene Law provides the statutory requirements for such appointment.  Among the issues that may be faced in the case is the protection and control of the incapacitated person’s property.  There may be concerns about transfers of a person’s assets that were improper due to undue influence or the abuse of a power of attorney.  Guardianship cases often involve concerns regarding elder abuse.  A Court appointed Guardian can bring a turn-over proceeding to recover assets that were wrongfully transferred at a time of incompetence.

These very same issues are often faced in Estate litigation after a person dies.  An Estate fiduciary, such as an executor or administrator, can bring a turn-over proceeding to re-claim assets that were improperly transferred during the decedent’s lifetime or are withheld from the Estate.  It is common that these Court disputes are transferred from Guardianship litigation to Estate litigation after death.  I have seen this occur on many occasions.  It is interesting to know that the Guardianship Court has the power to revoke or void transactions it finds to be improper.  The Court can even revoke a power of attorney or health care proxy that it finds to have been executed at a time when a person did not have the capacity to sign.  However, a Guardianship Court may not revoke a Last Will and Testament.  The validity of a Last Will can only be challenged in a Will Contest in the Surrogate’s Court after a person dies.  I have handled many of these Will Contest cases.  It often appears that the disputes that take place in the Guardianship Court are just the beginning of the contested Will matters that are fought in the Surrogate’s Court after the incapacitated person dies.   Many times the evidence from the Guardianship case is used in the Estate battles.

shutterstock_199873709-300x200New Yorkers, as well as people throughout the world, are dealing with the health and financial effects of the COVID-19 pandemic. As in many past emergency and life-changing situations, thoughts are focused on a person’s future well-being. In particular, having practiced in the New York trusts and estates and estate planning area for 40 years, I have encountered similar environments created by events such as 9/11 and Hurricane Sandy.

This article is meant to provide some reassurance and guidance going forward. As I have talked about in many posts in the New York Probate Lawyer Blog, preparing an estate plan is important. Such a plan, which should include advance directives, provides a documentary guide for the disposition of assets upon death and for life-time, health care and financial management. These documents include a Last Will and Testament, Living Will, Health Care Proxy, Living Trust and Power of Attorney.

If such a plan has not been instituted, the time to consider and implement these papers can take place going forward. If there is an emergency situation call my office now and we can attempt to assist.

shutterstock_1403735534-300x200There are many different types of proceedings in the Surrogate’s Court. New York Estate lawyers are involved with probate, administration, accounting and kinship proceedings just to name a few of the most common ones. In each of these matters, the estate laws which are contained in the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL) require that notice of the proceeding and Court dates must be provided to interested parties. In most cases, interested parties include a decedent’s next of kin which are referred to as distributees. The New York Probate Lawyer Blog had discussed many of these estate proceedings.

For example, when a Last Will and Testament is offered for probate, notice must be given to the decedent’s distributees. This is because these individuals have a right to Object to the Will. In the event the Will is determined to be invalid, then the estate assets are distributed to the distributees pursuant to EPTL 4-1.1 entitled “Descent and distribution of a decedent’s estate.” Such distributions may be more favorable to the distributees than the terms of a Will which might disinherit such persons.

The most common form of notice is a Citation which is served on the interested party and tells them the nature of the case and provides a date, time and location for them to appear in Court to present their objections or position regarding the subject of the matter before the Court. Persons involved with estate litigation and estate controversies are familiar with Citations.

shutterstock_1465659569-300x201As a New York Guardianship lawyer for over 35 years, I have encountered many different situations in these types of cases. Article 81 of the Mental Hygiene Law (MHL) provides the various statutes concerning the basis and procedure for the appointment of a Guardian for property management and personal needs.

MHL Section 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” sets forth that a person who files a petition to have a Guardian appointed must present clear and convincing evidence that an appointment is warranted and that the alleged incapacitated person is incapacitated. It needs to be shown that a person would suffer harm without the appointment because their personal and property needs cannot be handled and such person does not appreciate their own inability to attend to their affairs. The New York Probate Lawyer Blog contains many articles regarding Guardianship matters.

Demonstrating to the Court that a Guardianship should be imposed is not always easy. In fact, if a petition for a Guardianship due to alleged incapacity is filed and the Court dismisses the case, the party filing the papers may be held responsible for various costs by the Court. This was the situation in a recent Manhattan Guardianship case entitled In the Matter of Cynthia W. This proceeding was filed by the son of an alleged incapacitated person who was the petitioner’s 85-year-old mother. The case was quite litigious. Initially, the Court had made a number of procedural rulings which included a direction that the petitioner was not allowed to call his mother as a witness and that he would be prevented from introducing medical evidence concerning his mother’s condition. The Court noted that Article 81 proceedings concern a person’s functional limitations and that the mother had a right to invoke the doctor-patient privilege. In these matters the Court focuses on a person’s ability to engage in activities of daily living.

shutterstock_330039464-300x200The probate process in New York requires that statutory and procedural guidelines be complied with. The statutory framework is contained in the Surrogate’s Court Procedure Act and the Estates, Powers and Trusts Law. Admitting a Will to probate is, in effect, obtaining Court approval that the document is valid and its terms are enforceable as to the disposition of a decedent’s estate. The New York Probate Lawyer Blog contains many articles regarding this process.

When a Will is offered for probate, a petition is filed with the Surrogate’s Court along with the original Will, a death certificate and other required papers. These may include a kinship affidavit and affidavits from the attesting witnesses. Often the original Will has attached to it a self-proving affidavit that was signed by the Will witnesses at the time of the execution of the Will.

While most probate cases proceed without complications or unnecessary delay, there are many instances where problems arise that can sidetrack or prevent the completion of the Court determination of validity. One major hurdle may be in the form of a Will Contest. A Will may be contested for lack of due execution, lack of testamentary capacity, undue influence or even forgery. Another problem that may be encountered is proof of kinship. The statutes require that notice be given to all of the decedent’s distributees (next of kin). Such notice is usually in the form of a Citation, which is like a summons that requires the recipient to appear in Court and state whether they are going to challenge the Will. Sometimes, it may be difficult to determine the identity or location of a decedent’s next of kin.

shutterstock_1021207423-300x200A New York decedent may have many different interests in property and assets. Such interests may include real estate such as a residence and financial and bank accounts. These assets are disposed of after death through a number of methods. There may be a Last Will and Testament which, after being admitted to probate, controls the disposition of items held in the decedent’s name alone. Also, assets that are owned jointly or that contain designated beneficiaries are distributed by operation of law to the designee. The New York Probate Lawyer Blog has published many posts talking about asset distribution from an estate.

Another very important right that may flow from a decedent is a right to succeed or take over the tenancy of a decedent’s New York City rent stabilized or rent controlled apartment. This right which is typically afforded to certain family members identified in the rent regulations is important because it preserves the tenancy and rent limitations for the successors. The rent laws and regulations provide very specific guidelines for someone to qualify for this favored treatment.

In addition to family members, the rules allow for so-called non-traditional family members to obtain these rental rights under certain conditions. Where individuals have relationships that in effect amount to financial and family-type interdependence, the law will recognize the need to allow the survivor to take over the apartment tenancy. In these cases, a Court will scrutinize the nature and extent of the relationship to see whether the statutory criteria have been satisfied.

House-Keys-300x200A New York Estate is usually comprised of many different types of assets. There can be bank accounts, brokerage accounts, retirement funds, and business interests in the form of limited liability companies, partnerships and corporations. However, one of the most common and valuable assets of an estate is real estate. There may be commercial properties or residential properties.

The estate fiduciaries, whether an Administrator or Executor, must protect and manage the estate properties. This is part of the fiduciaries’ duties and is necessary for effective estate settlement. In many instances an executor or administrator may be faced with the problem that the real estate is occupied by individuals who refuse to vacate the premises and who do not have a legal right to remain in possession. The New York Probate Lawyer Blog has published earlier articles regarding this estate dilemma. As will be discussed in this blog post, the issue is very common.

When a property owned by the estate is occupied by third parties without any possessory rights, the fiduciary is forced to engage in estate litigation to evict them. Sometimes these eviction cases can be commenced in Landlord-Tenant Court. This is usually the procedure to be used with occupants who have no family or other connection to the decedent. However, when a family member or someone with a close relation to the decedent is improperly refusing to leave the real estate, such as a house, relief may be sought through the procedures in the Surrogate’s Court. As an estate attorney, I have represented many fiduciaries in these types of cases. A recent Manhattan estate case decided by Manhattan Surrogate Nora Anderson on December 19, 2019 entitled Estate of Flender shows how these matters are handled by the Court. In Flender, the decedent’s Last Will directed that the estate real estate be sold. The Will also had a provision that the estate beneficiaries could purchase the real estate if they complied with certain guidelines and timeliness. One of the beneficiaries provided notice that they wanted to buy the estate property where they were presently residing. However, the beneficiary failed to comply with the purchase requirements. As a result, the fiduciary commenced a Surrogate’s Court Procedure Act turnover proceeding to have the beneficiary evicted. The beneficiary argued that the trustees of trusts established under the Will wrongfully refused to make a discretionary payment to the beneficiary that would have provided the financing for the purchase. After a hearing, the Court found that the trustees did not act in bad faith in refusing to distribute trust assets to facilitate the purchase. The Court granted the relief requested in the turnover proceeding and directed the issuance of a warrant of eviction. The beneficiary was allowed 60 days to vacate the estate property.

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