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The filing of a Will Contest with the Surrogate’s Court brings to mind melodramatic stories of family intrigue and deception that are played out in movies, novels and other media outlets.  In reality, Contests regarding a Will in New York are rather common occurrences that are subject to strict statutory and procedural guidelines.

When a person dies and leaves a Will, the document must be offered for probate.  This means that the validity of the Will is not achieved until the Surrogate admits the Will to probate.  A probate proceeding involves the notification of the decedent’s next of kin and other interested parties who are the ones who have the right to challenge a Will.  The New York Probate Lawyer Blog has published numerous articles about Wills and probate.  The basic grounds upon which a Will is challenged are lack of due execution, lack of testamentary capacity, undue influence and fraud.  Sometimes an allegation may be made that a Will has a forged signature.

The Objectants to a Will, as well as the proponents, engage in a lengthy period of discovery that is meant to allow the parties to ferret out facts to support their positions.  This discovery process includes deposition testimony of various witnesses including the attesting witnesses to the Will and the attorney who drafted the Will.  Also, various documents can be obtained and reviewed including the decedent’s medical and financial records.

An Article 81 Guardian appointed to safeguard the person and property of an incapacitated person may need to deal with an assortment of issues.  Similar responsibilities are given to the Executors and Administrators of an estate.

In particular, the property interests of both an incapacitated person and a decedent’s estate may involve an apartment where the person was residing.  When a person dies, if the apartment was not owned in nature of a co-op or condominium unit, the estate fiduciary must arrange to obtain access to the apartment.  The need for access can include securing valuable articles of tangible personal property, locating asset information such as tax returns, bank account statements and brokerage and retirement fund information.  Additionally, the apartment will need to be cleaned out at some point and returned to the possession of the landlord.  Of course, if there are other family members living in the apartment who refuse to leave or provide access or who have claims to continue to occupy the premises in the nature of succession rights, then the fiduciary must grapple with these issues.  The New York Probate Lawyer Blog has published numerous articles concerning problems in obtaining possession of a decedent’s real property.

The Guardian for an incapacitated person may face similar issues particularly if the ward is now residing in a nursing home or other location.  An issue may arise as to whether the incapacitated person intends to return to the community to live in the apartment.  A landlord may want the ward evicted, particularly if the apartment is rent regulated.

The administration of a New York estate requires that the decedent’s assets be identified and collected.  In most cases the marshaling of estate assets is not complicated.  An Executor or Administrator often collects funds from bank accounts, brokerage accounts, retirement accounts and life insurance.  Typically, there are forms to be completed and the asset is paid to the fiduciary.

However, today, many assets and the information regarding assets, along with a decedent’s affairs, only exists or is stored in a digital format.  Unlike traditional items belonging to a decedent that can be discovered by looking through a decedent’s papers or mail, these digital assets are only found in electronic form.  As a result, an estate representative is faced with the difficult task of discovering and then accessing this material.  It is even more daunting to obtain such information when pass-words are unknown and the custodian of the information, such as an internet company like Google, Facebook, Apple or other on-line services, maintain strict privacy policies.

Such was the problem in a Westchester Estate that was faced by parents when their 24 year old son died unexpectantly.  After the son’s death, without a Will, the parents were appointed as Administrators of his estate.  They attempted to obtain formation from Apple that was contained in their son’s iPhone.  Unfortunately, the parents did not have the passcode to access any of the data.  After contacting Apple, they were advised among other requirements, that a Court Order would be needed to obtain the information, some of which may have been stored in iCloud back-up.

There are a number of different ways in which a person can dispose of assets after death.  Creating a Last Will and Testament is a traditional vehicle for a person to transfer his estate to estate beneficiaries.   A Will controls all assets that are owned by a decedent in his individual name at the time of death.  This document can provide details regarding the amounts and the manner of bequests.

Another possible estate planning document is a Living Trust or Revocable Trust.  This trust is created during a person’s lifetime and assets are transferred into the trust during the life of the Grantor.  When a person dies with a Revocable Trust, the successor or remaining trustee distributes or holds the trust fund in accordance with the terms of the trust.  However, unlike a Will, which needs to be filed with the Court for probate, there is no public record of the trust.  As a result, potential beneficiaries of the decedent’s estate cannot immediately see whether they were named in the trust.  Also, it is difficult to determine whether the trust was created or funded under circumstances that may involve undue influence or other wrongful acts.   The New York Probate Lawyer Blog has published numerous articles concerning Living or Revocable Trusts.

A person who has questions regarding the validity of a lifetime trust can commence litigation to void the trust.  There are possible proceedings whereby an estate fiduciary, such as executor or administrator, can investigate the circumstances under which the trust was put into place.  It is not uncommon to see trust litigation especially when the terms of the trust document are different from a Last Will that was previously signed by the decedent.

Estate assets may include bank accounts, security investment accounts and retirement funds.  However, real estate ownership typically accounts for the largest value in most estates.  Moreover, due to the many ways that real property may be owned and the lack of attention by owners to title formalities, an estate’s interest in such property may be frought with complexity.

Real property in New York can be owned individually or by more than one person as tenants in common or as joint tenants with rights of survivorship.  A married couple can own real estate as tenants by the entirety.  When a property owner dies, the post-death transfer of the property is typically going to be determined by a number of factors.  One consideration is the manner in which the property is owned.  If it is owned in joint tenancy with survivorship rights or as tenants by the entirety, the ownership will be automatically vested in the survivor by operation of law.  However, if the property is held in the decedent’s individual name, it will pass either pursuant to the provisions in a decedent’s Last Will, or transferred by intestacy to the decedent’s next of kin.

As an Estate Attorney in New York City, I have represented clients in Brooklyn estates and Queens estates and Manhattan estates, for example, where the title to estate property was clouded by issues of ownership that preceded the decedent’s death.   In many of these cases real estate that is technically owned by the decedent is still in the name of pre-deceased relatives since no formal action was taken to transfer the title after the death of the older relative.  I have seen property still held in the name of deceased parents and grandparents of the decedent.  Sorting out the current ownership of such property can be a monumental task and might delay the transfer or sale of the property for many months.  This can lead to estate litigation.

When a Last Will and Testament is submitted to the Surrogate’s Court, the document is always reviewed for due execution.  The requirements needed to properly sign a Will are located in Estates, Powers and Trusts Law section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.

The New York Probate Lawyer Blog has published many articles regarding Will execution.  The statute is quite explicit and requires that there be a writing and that there be two witnesses.  Of course, there tends to be many variations that arise when a Will is offered for probate.  Sometimes the witnesses to the Will who may be called upon to testify cannot remember the Will signing ceremony.  In other instances, a witness may have died or it may not be possible to locate the witness.

Typically, when a Will is signed, the witnesses sign an affidavit called a self-proving affidavit that sets forth all of the elements regarding proper execution.  However, when an interested party seeks discovery under Surrogate’s Court Procedure Act 1404 entitled “Witnesses to be examined; proof required”, or there is a Will Contest, the witnesses need to provide in person testimony.

When a person dies and leaves a Last Will and Testament, it is necessary to commence a probate proceeding to have the Will validated.   Probate in New York requires that various documents be filed with the Surrogate’s Court.  The original of the Will needs to be provided along with an original death certificate.   The petitioner is typically the person named as the Executor in the Will.  A Probate Petition is prepared which contains information including the date of the Will, the names of the attesting witnesses, the estimated value of the estate and the names and addresses of all parties interested in the matter.  These parties include the decedent’s distributees (next of kin) and the beneficiaries named in the Will.

There are many situations that may delay admitting a Will to probate.  One common occurrence is a Will Contest.  If the decedent’s distributees file Objections to the Will, then estate litigation associated with a Contested Will can delay final probate for a year or more.

Another delay may result where it is difficult to identify or locate the decedent’s distributees.  If a due diligence search needs to be completed before probate, there may be a delay for many months.  The New York Probate Lawyer Blog has posted many articles concerning Kinship, Probate and Will Contests.

Article 81 of the New York Mental Hygiene Law (MHL) contain the various provisions regarding the appointment of a Guardian for a person who is incapacitated.  The main title of this Article is “Proceedings For Appointment of A Guardian For Personal Needs or Property Management”.

The various sections of the statute provide both the procedure and the substantive law regarding Guardianship cases.  As can be seen from the title, the Court can appoint either a Guardian for property management or to assist with a person’s personal needs.  In most cases the Court will appoint both types.  The appointment very often will be for one person who then acts in both capacities.  MHL section 81.21 sets forth the powers of the property Guardian while MHL section 81.22 details the personal needs powers.

Many of the Guardianship cases concern issues dealing with a Power of Attorney.  Sometimes, a person who was appointed as an agent under a Power does not act properly or abuses his authority.  When a Guardianship proceeding is commenced the Court may be asked to review the agent’s actions.  Such review is important since the Court needs to determine wither a Guardian is required to try and recoup funds that were wrongfully administered.

One of the most valuable assets compromising an estate is real estate.  Typically, a decedent may own a home which he occupied with other individuals or which third parties occupied alone.

When the Surrogate’s Courts appoints an Administrator or Executor, the duties of the fiduciary often include securing and selling the real estate.  The real estate may need to be sold to satisfy estate obligations such as a mortgage or credit card bills or other debt obligations.  Also, the property may need to be liquidated to divide up the proceeds among a number of beneficiaries.

There are many situations where the persons residing in the estate property refuse to vacate.  I have represented numerous estates where landlord tenant eviction proceedings were required to evict persons occupying estate property.  Additionally, there are estate litigation proceedings that can be commenced in the Surrogate’s Court to remove persons from estate property.  These proceedings can be ejectment cases or turn-over proceedings pursuant to Surrogate’s Court Procedure Act 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information”.

After a person dies it is usually necessary to enter the decedent’s residence for various purposes.  To begin with, it may be that the home needs to be searched to see if the person left a Last Will and Testament.  Gaining access to the home may not be difficult if the decedent lived with a spouse or other family member.  However, if the decedent lived alone or voluntary access cannot be obtained, then an application can be made to the Surrogate’s Court for an Order to search the residence for a Will.

There may also be situations where either before or after a fiduciary is appointed, a residence is searched to locate papers and documents relating to the person’s income, assets, debts, business obligations and ordinary bills such as utilities, mortgage, rent or credit cards.

There are a number of important considerations when a residence is searched and the decedent’s personal effects are first reviewed.  If the individual entering the premises is not a duly appointed estate fiduciary he does not have any authorization to remove or otherwise discard any of the decedent’s property.  Additionally, even if the individual has been appointed as Executor or Administrator or Preliminary Executor, extreme care should be taken to inventory and safeguard the contents.

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