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There are numerous instances where the identity and location of estate assets is a source of New York City Estate litigation in the Surrogate’s Court.   An estate fiduciary such as an Executor has a fiduciary duty to collect and protect estate assets for the benefit of estate beneficiaries.  If the fiduciary fails to carry out his responsibilities he may be found to have breached his fiduciary duty and be personally responsible for the loss to the estate.

When a person dies a search is commenced to collect assets.  The New York Probate Lawyer Blog has discussed this issue in recent and past posts.  The primary source of a remedy to find assets is found in Surrogate’s Court Procedure Act (SCPA) section 2103 which is entitled “Proceeding by fiduciary to discover property withheld or obtain information”.  This statute is very broad in scope and allows an executor or administrator to investigate all circumstances which may lead to the identification and recovery of assets.  While the statute is sometimes seen as allowing what is referred to as a “fishing expedition”, the Surrogate’s Court generally allows a wide opportunity for inquiry.

A recent Brooklyn Estate case entitled Estate of Geraci, decided by Brooklyn Surrogate Margarita Lopez Torres on October 15, 2018, demonstrates the applicability of the statute.  In Geraci, the daughter of a decedent sought authority to investigate actions by her brother whereby real estate that was owned by their mother was deeded to the brother seven months prior to the mother’s death.  This set of facts is very common and involves transfers of assets just before a person dies.  Typically, transfers are made when a decedent is suffering from an illness or disability and it appears that the asset transfer is contrary to the decedent’s dispositions in a Last Will and other expressions of an estate plan.  These cases involve issues of capacity and undue influence.

An executor or administrator of a New York estate has the duty to identify and collect all of the assets belonging to a decedent.  These assets include bank accounts, stocks, bonds, retirement accounts such as IRA’s, and real estate.  Once these items are collected and the estate bills and claims are paid, a distribution can be made to the estate beneficiaries.

It is not uncommon for fiduciaries to become engaged in estate litigation regarding the collection of assets.  Third parties may claim to own items that were obtained from a decedent in wrongful or questionable ways.  For example, someone may be the title owner of a bank account or real estate which was transferred to them shortly before the decedent’s death and at a time when the decedent lacked capacity due to illness or injury.  The estate administrator or executor may try to recover such assets claiming that the decedent lacked capacity and was unduly influenced at the time of the transfer.  The New York Probate Lawyer Blog has published many articles concerning the recovery of assets by an estate.

There are also instances where a third party may claim that the decedent’s estate is holding property that really belongs to the third party.   In these cases the third party owner can commence a proceeding in the Surrogate’s Court under Surrogate’s Court Procedure Act (SCPA) 2105 to recover the items from the estate.   SCPA 2105 is entitled “Proceeding to compel delivery of property by a fiduciary which is claimed by another or others”.

When a person dies and the initial steps are taken to administer his estate, one of the first issues to be resolved is the domicile of the decedent.  Domicile is an interesting topic and the determination of domicile can be very complicated.  Essentially, it is the place where a person maintains a permanent and principal home to which he intends to return.  A person may have many residences but only one place of domicile.

For many aspects of estate administration domicile will determine which state’s laws apply to a decedent.  This determination can affect the rights of the various parties who have an interest in the estate and also which local tax laws can be applied.   An example is when a New York domiciliary dies, his Will is typically probated in New York and the New York estate and probate laws are looked to regarding estate administration.

Estate litigation can arise when an individual’s domicile is unclear.  While this issue can be determined by examining many factors such as where the decedent filed his local taxes or had a driver’s license, or the number of days per year spent in a certain state, the ultimate determination can be time consuming.  New York Estate lawyers deal with such matters regularly.

The Probate of a New York Last Will and Testament involves many issues.  Procedures provided by the Surrogate’s Court Procedure Act (SCPA) as well as statues comprising the Estates, Powers and Trusts Law (EPTL) provide the basic rules regarding probate.

For example, EPTL section 3-2.1 titled “Execution and attestation of wills; formal requirements”, sets out the primary rules for the execution of a Will.  New York Estate Lawyers are familiar with this statute.  The law mandates that a Will be in writing and signed at the end of the document and that there needs to be two attesting witnesses.

In many instances, Objectants may file a Will Contest and assert that a Will was not properly executed.  The New York Probate Lawyer Blog has discussed Contested Wills in many articles.  As noted in the Probate Blog, other grounds for Objections include undue influence, lack of testamentary capacity and duress.  When Objections are filed with the Surrogate’s Court, estate litigation can be lengthy and complicated.

Estate planning in New York can be provided through a number of different documents.  First and foremost, a Last Will and Testament sets forth the various provisions that a testator desires regarding the disposition of his estate.  Another important estate planning device is a Revocable Living Trust.  This type of trust allows a person to place assets in the trust during life and then have them distributed in a certain manner upon death.  The essential element of such a trust is that it is revocable and the creator can modify it or revoke it.

Looking at the various estate planning tools, the overriding element is that a person who creates these documents is able to direct the disposition of assets after death.  Thus, a person’s desires and intentions can be memorialized and carried out by his fiduciaries such as Executors and Trustees.

Since these documents reflect a person’s intentions, it is important that the person creating them make his desires clearly known.  Estate lawyers assist their clients so that there is no ambiguity regarding the names of beneficiaries and the assets or interests in the estate that are to be distributed.  The New York Probate Lawyer Blog has published many articles regarding Wills and planning an estate.  When issues arise regarding the validity or meaning of a Will, estate litigation in the Surrogate’s Court can arise.

When planning an estate, a person may consider many different provisions that can be a part of a Last Will.  Of course, many of the Will terms concern the disposition of assets and bequests to various beneficiaries.  A Will may contain a bequest of an amount of money or a devise of a specifically identified parcel of real property.

There are parts of a Will that contain a residuary clause and also the nomination of executors or trustees.  Some provisions also are inserted to create a testamentary trust or provide for the appointment of a guardian for a minor.

New York estate lawyers are also familiar with “No Contest” clauses which are also known as “In Terrorem“ clauses.  These types of clauses are discussed in Estates, Powers and Trusts Law section 3-3.5 which is entitled “Conditions qualifying dispositions; conditions against contest; limitations thereon”.  The effect of this clause is that if a person engages in certain actions like a Will contest, he loses the right to receive any bequest under the Will.

The Probate of a New York Will is the method by which a Will is validated by the Surrogate’s Court.   After a Will is admitted to probate the named Executor is typically granted letters testamentary which authorizes him to handle estate affairs.  This includes the collection of estate assets, the payment of debts and expenses and the distribution of the net estate to the beneficiaries according to the provisions of the Will.

The probate process requires that notice of the proceeding be given to the decedent’s distributees (next of kin).   These individuals have a right to file Objections to the Will.  Notice is typically given by the service of a Citation which is like a Summons.   The Citation sets forth a date for the parties to appear in Court.  The New York Probate Lawyer Blog has published many articles concerning probating a Will.

If any of the distributees want to contest a Will they must file Objections.  Usually, Objections are that the Will is invalid due to improper execution or that the decedent did not have testamentary capacity or that the Will was the product of undue influence.

A decedent’s estate is subject to the terms of written documents and estate laws.  The primary paper that controls an estate is a Last Will.  A duly executed Will that is admitted to probate provides the manner in which the estate is to be distributed.

A Will may contain bequests of specific property or amounts of money.  There can also be dispositions of shares or percentages of an estate to estate beneficiaries.  The provisions in a Will are determined in the estate plan that is adopted.

It should be noted that a Will is not the only writing that can affect the disposition of an estate.  For example, a person may have entered into a pre-nuptial agreement with a spouse.  Such an agreement may contain terms that limit or even eliminate a surviving spouse’s right to share in decedent’s estate or to act as an Executor or Trustee.  When a pre-nuptial agreement is entered into by the parties there are many factors that must be considered that relate to the disposition of assets in the event of divorce or death.   Very often such agreements are utilized in second marriage situations so that assets can be reserved for children or family members from a prior marriage.

Important Facts Regarding Intestate Estates In New York

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When a person dies without a Last Will he is said to have died intestate.  In these cases,  a person’s estate is distributed according to Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate.

When a person dies the New York Estate Laws provide certain preferential rights to a surviving spouse. For example, a surviving spouse has priority to be appointed as Administrator of an intestate estate. Also, the surviving spouse receives the largest distributive share of an intestate estate.

A spouse cannot be disinherited. The Estates, Powers and Trusts Law Section
 5-1.1-A entitled “A Right of election by surviving spouse” gives a surviving spouse a Right of Election. This means that the survivor can elect to receive one-third of a decedent’s net estate. The New York Probate Lawyer Blog has had many posts regarding the Right of Election and the Notice of Right of Election.

This right is often utilized so that a spouse can receive a share of pension benefits or death benefits that have another person designated as the beneficiary.

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