New York Probate Lawyer Blog

June 22, 2026

The Intersection Between a New York Last Will and Testament and Trusts

The importance of estate planning in New York has been examined in numerous articles in the New York Probate Lawyer Blog. An estate plan in a broad sense can be comprised of many documents such as a Last Will and Testament, Living Trust, Living Will, Durable Power of Attorney and Health Care Proxy. However, a deeper understanding of estate law and the intersection of different documents such as a Will and a Trust is required for the effective disposition of assets and the achievement of a person’s intensions.

This Blog has discussed how a Last Will controls assets that are owned by a decedent in his name alone at death. A bank account or real estate bearing only a decedent’s name is disposed of according to the terms of a Will. Joint assets or assets which name a pay on death beneficiary are not controlled by a Will but pass directly to the joint owner or beneficiary upon death. If there is no Will, assets solely in a decedent’s name are controlled by the New York laws of intestacy which direct which heirs are to receive the assets. Assuming, however, that there is a Will, a Trust may come into play regarding the disposition of an asset.

If an asset is controlled by a Will, there may be a provision in the Will whereby the estate asset is given to a Trustee of a Trust whose terms and provisions are spelled out in the Will itself. This is known as a Testamentary Trust. A Testamentary Trust may be created in a Will for a number of purposes. Most commonly, such Trusts are utilized to hold funds for minor children until they reach certain ages or for specific purposes such as education. The Trustee designated in a Will is appointed by the Surrogate’s Court just like an Executor of the Will. The Trustee is given certain powers and authority in the Will which must be adhered to. Testamentary Trusts can also be utilized for estate planning or to administer funds for persons under a disability. These are known as Supplemental Needs Trusts. A Charitable Trust can be created to benefit charities. The terms of a Testamentary Trust include details as to Trust asset dispositions, as well as the termination or final payment of Trust funds. There are very complex rules which provide that Trusts cannot continue in perpetuity.

May 12, 2026

Two (2) Important Considerations When Creating A New York Estate Plan

by Jules M. Haas

The New York Probate Lawyer Blog has published dozens of articles relating to many different topics such as estate planning, probating a Last Will and Testament, Will contests; objecting to a Last Will; intestate estate administration; kinship proceedings; estate accounting proceedings; proceedings by an executor or administrator to recover estate property from a third-party; selling estate real estate. This list barely scratches the surface.

One of the primary functions in planning an estate is to avoid issues which may arise and be difficult to solve once a person is deceased. An estate plan can include documents such as a Last Will, Living Will, Living Trust, Power of Attorney and Health Care Proxy. Creating these papers may forestall post-death problems. For example, here are a few areas of concern:

Kinship– After a person dies either a Last Will needs to be probated or an intestate administration proceeding commenced. In both instances it is absolutely necessary to know the identity and whereabouts of a decedent’s next of kin. This information is essential for all probate and intestate petitions. A person’s next of kin is not always easy to determine. In many cases there are close relatives such as a spouse, children, parents or brothers and sisters. However, over the more than 40 years of practicing in the trusts and estates areas I have encountered many estates where a decedent’s heirs (called “distributees”) are either not known or only partially known. For example, a person may prepare a Last Will and leave their estate to a friend or a charity. As it turns out, the decedent’s next of kin are unknown to his associates or executor or are distant relatives who live in various countries or states and who have had no contact with the decedent for decades. The need to perform a kinship search or engage in a kinship hearing can be costly and delay the settlement of an estate for many years. The bottom line is for a person to provide complete kinship information at the time the estate plan is created so that this

April 30, 2026

Yes- In New York A Person Can Disinherit Family Members Except For a Spouse

by Jules M. Haas

Estate planning in New York involves many considerations and decisions. A full understanding and verification of assets is always a good starting point. As discussed in many articles in the New York Probate Lawyer Blog, only assets which are owned by a decedent pass under a Last Will and Testament. In the event a person has assets which are jointly owned with another individual or contain a named beneficiary, these items pass directly to the co-owner or beneficiary by operation of law. In other words, the assets are not controlled by the terms of a Last Will.

Incidentally, in situations where a person dies intestate without a Last Will, all assets owned in the name of the decedent are distributed according to the statutory designated next of kin. At least when a Last Will is created, a person can specifically choose the beneficiaries who are intended to receive estate funds.

Choosing beneficiaries is not always easy depending upon an individuals circumstances. A person preparing an estate plan may want to include or exclude various individuals. In New York, there is no requirement that children be left an inheritance. Some or all children can be entirely disinherited. Of course, in these situations careful planning is needed since a disinherited child may feel that a parent was unduly influenced or lacked testamentary capacity which led to what they believe was unfair treatment. Many times a Will Contest results due to a close family member not receiving the inheritance they have expected.

April 17, 2026

How New York Guardianship Proceedings Can Prevent Elder Abuse

by Jules M. Haas

Article 81 of The New York Mental Hygiene Law (MHL) entitled “Proceedings For Appointment Of A Guardian For Personal Needs Or Property Management”, provides the substantive and procedural requirements for Guardianships in New York. The New York Probate Lawyer Blog has published many articles concerning issues relating to, and aspects of, Guardianship law.

The touchstone provision of Guardianship is a determination that a person is incapacitated and requires the appointment to provide for his personal needs and/or property management. This basic pronouncement is found in section 81.02 of the MHL which is entitled “Power to appoint a guardian of the person and/or property; standard for appointment”. Incapacity, which must be shown by clear and convincing evidence, exists when a person is likely to suffer harm when, according to the statute, a person cannot handle his property management or personal affairs and cannot appreciate and understand the consequences and nature of such disability.

As can be seen from the language of the statute, demonstrating that a person requires a guardian because they are incapacitated is not a clear, black or white issue. Capacity is based upon a person’s functional ability- how does the person handle activities of daily living such as personal hygiene, shopping, taking care of finances or medical needs, dressing oneself, paying bills, etc.

April 9, 2026

The Importance of Creating a Last Will Which Complies With The New York Will Statute

by Jules M. Haas

As I have repeated many times in the New York Probate Lawyer Blog, a critical determination at death is whether a person had a Last Will and Testament or died intestate. If a Last Will is located, then a decedent’s estate is the subject for the probate process. This means that the Will is filed in the appropriate New York Surrogate’s Court along with a Petition requesting that the Will be admitted to probate and that the Court issue Letters Testamentary to the Petitioner. There may be some minor variations, but this is the general procedure.

In the event there is no Will, a proceeding for Letters of Administration must be initiated. The persons who inherit an intestate estate and who are entitled to be appointed as Administrators are determined strictly in accordance with the New York intestacy laws.

When a Will is filed for probate, one of the initial inquiries is whether the document was executed in accordance with the statutory requirements. The New York Probate Lawyer Blog has published many articles concerning probate and Surrogate’s Court proceedings. In this regard Surrogate’s Court Procedure Act section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides the basic requirements for the validity of a Will. For example, a Will needs to be in writing and have two attesting witnesses. The person creating the Will, the testator, must sign the document at the end of the paper. In the event that a Will is not created in strict conformity with the estate law, then a Court can invalidate it and a decedent’s estate is then generally subject to the intestacy laws.

March 24, 2026

The Duty of A New York Executor or Administrator To Provide Information To Beneficiaries

by Jules M. Haas

The settling of an estate in New York involves numerous stages. At the outset, after a person dies, decisions must be made as to whether to probate a Last Will and Testament or if intestate Administration is required. In order to proceed, a Last Will must actually be located or determined not to exist. Sometimes the original Last Will is easily found amongst a decedent’s personal effects or on file with an attorney. If located, a Will is then filed with the Surrogate’s Court and the probate process is commenced. When there is no Will, a petition for intestate Letters of Administration is the path to follow.

Even at this early stage, a decedent’s next of kin and named beneficiaries are anxious to know about the steps being taken to have a fiduciary appointed to handle estate affairs and also to learn about estate assets. The persons who have the initial opportunity to move forward are those individuals designated as Executors or who have a priority right under the New York estate laws to be appointed as Administrators.

It is very common for parties who have an interest in an estate to contact me and relate that they are not receiving any information from a potential Executor or Administrator as to their progress in obtaining Court appointment. Unfortunately, in the regular course of events, a named Executor or potential Administrator is not required to report their progress. If there is an inordinate delay, say the filing of a Will with the Surrogate’s Court, a proceeding can be filed with the Court to require individuals who possess an original Will to file it in the Court. Also, there may be alternate person’s who would have the statutory right to commence a proceeding for Letters of Administration or Letters Testamentary.

March 12, 2026

When Should a Surviving Spouse File a New York Spousal Right of Election

by Jules M. Haas

The settlement of a New York estate occurs in a number of different contexts. If a Decedent dies and leaves a Last Will and Testament then the probate process begins to have the Will admitted to probate. A petition for probate is filed with the Surrogate’s Court along with the necessary supporting papers. In the event a Decedent dies intestate without a Will, then an Administration proceeding must be commenced to obtain the appointment of an Administrator and the issuance of Letters of Administration.

In all of the above situations, if a Decedent is survived by a spouse, an immediate question arises as to the nature and value of the interest which is to be distributed to a surviving spouse. In the case of a Will, the document must be examined to see what provisions have been made for the spouse. Where there is an intestacy, Estates, Powers & Trusts Law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides that a surviving spouse is entitled to receive the first $50,000.00 plus one-half of the balance of the estate.

The determination of spousal rights gets very complicated by the fact that pursuant to EPTL 5-1. 1A entitled “Right of election by surviving spouse” a surviving spouse is guaranteed to receive at least one-third (1/3) of a Decedent’s net estate. To complicate matters even more, the calculation of the spousal right of election includes assets which are called Testamentary Substitutes. These assets include items such as joint assets and assets which pass outside of the probate and administration estates to third party beneficiaries. As can be imagined, the determination of all of these assets and the calculation of the overall spousal share can be filled with complexity. For example, it may be that the provisions for a spouse under a Will are less than what a spouse would receive by asserting her claim to a spousal election. In such a case the election can be used to increase the amount of assets to be received by the spouse.

February 17, 2026

New York Intestate Laws- Why There Are Strict Rules Regarding Kinship and Intestate Rights

by Jules M. Haas

For many years the New York Probate Lawyer Blog has published articles regarding the settlement of a New York estate. When a person dies and leaves a Last Will and Testament, the Will must proceed through the probate process to become validated and enforceable. A probate petition is filed in the appropriate Surrogate’s Court and next of kin (“distributees”) are given notice through a Citation as to their rights to accept the document or contest the Will.

When a decedent fails to have a Will, he is deemed to have died intestate. According to Surrogate’s Court Procedure Act (SCPA) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” a priority list of individuals is named who are determined to have the right to inherit the estate assets. Similarly, SCPA Section 1001 provides a similar priority list of the persons who have the right to be appointed as the Administrator of the estate. Demonstrating that you have the statutory right to inherit and/or be appointed as the estate fiduciary is imperative regarding your ability to be involved in intestate estate affairs.

For example, I have represented clients as a New York estate lawyer for more than 40 years. During that time, I have encountered many individuals who maintained long-term relationships with a Decedent but were not related by blood such as a companion or friend. However, since the Decedent did not leave a Last Will, such individuals have no standing as a distributee to share in the estate or even act as an Administrator. Such a situation exists despite the fact that a Decedent may actually have been estranged from his blood relatives.

February 5, 2026

Removal of a New York Executor or Administrator- Specific Facts and Acts Are Essential

by Jules M. Haas

The appointment of an Executor or Administrator of an estate begins the process of the settlement of an estate. An Executor is appointed when a decedent leaves a Last Will and Testament which has been admitted to Probate in the Surrogate’s Court. There are Surrogate’s Court’s throughout New York State including the New York County (Manhattan) Surrogate’s Court, the Bronx County Surrogate’s Court, the Kings County (Brooklyn) Surrogate’s Court and the Queens County Surrogate’s Court. An Administrator is appointed when a Decedent does not have a Will and dies intestate. In these cases a Decedent’s distributees (heirs at law) inherit the estate. The New York Probate Lawyer Blog contains many articles regarding estates and fiduciaries.

The Court appointed Administrator or Executor and also Trustees have many obligations and powers. The obligations include duties of fairness to beneficiaries and to not take advantage of the appointment to benefit themself. A fiduciary cannot comingle estate or trust funds with his personal funds and cannot use fiduciary assets for personal purposes or personal expenses. A fiduciary has many powers which are given by the Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ powers”.

As a trusts and estates lawyer for over 45 years, I have encountered many situations where an issue arises concerning fiduciary conduct and whether the appointment of a fiduciary should be revoked by a Court. These cases can be very complicated. The Court requires that specific acts and facts of wrongdoing be shown for removal. It is not enough for a beneficiary just to say that he does not like or get along with the executor or trustee.

January 29, 2026

Undue Influence and New York Wills-Some Important Considerations

by Jules M. Haas

A Last Will and Testament is an important document since it is meant to express in writing a person’s disposition of his estate. A Will is an embodiment of a testator’s intentions. The document may contain many different provisions and dispositions of assets. For example, there may be legacies disposing of a specific amount of money to a beneficiary or a specific personal asset such as jewelry or art-work. Also, specific devises of real property may be made. A Will can contain testamentary trusts or other trusts such as a supplemental needs trust. A testator typically includes provisions nominating executors, trustees and guardians for children.

As discussed, in many articles in the New York Probate Lawyer Blog, a Will must be filed in the Surrogate’s Court and go through the probate process. Once a Will is admitted to probate, it has been validated by the Court and its terms and provisions must be adhered to by the appointed Executor.

During the probate proceeding various individuals may object to the probate of a Will. Usually distributees (i.e. next of kin) have a right to file objections to a Will although persons whose interests from a prior Will which have been adversely affected may also be entitled to file objections. The basis for objections include improper execution, lack of testamentary capacity and undue influence. These objections result in a Contested Will.