New York Choice of Law Issues Can Determine Outcome of Case

Following a person’s death, it may be necessary to file papers with a Court to commence a Probate proceeding, if the person had a Last Will, or an Administration proceeding if the person died intestate. It may also be necessary to determine the appropriate set of laws that are to be applied to determine issues regarding estate administration. For example New York Surrogate’s Court Procedure Act section 3-5.1 provides in paragraph (7)(b)(1) that:

“The formal validity, intrinsic validity, effect,
interpretation,revocation or alteration of a
testamentary disposition of real property, and
the manner in which such property descends when
not disposed of by will, are determined by the law
of the jurisdiction in which the land is situated.”

Paragraph (7)(b)(2) of the statute states that:

“The intrinsic validity, effect, revocation or alteration
of a testamentary disposition of personal property, and
the manner in which such property devolves when not
disposed of by will, are determined by the law of the jurisdiction
in which the decedent was domiciled at death.”

Therefore, the determination of a decedent’s domicile and the location of real property owned by the decedent may determine the proper set of laws to be used in a particular situation.

The selection of the proper laws to apply may not be a simple affair and may impact upon many issues in estate administration, including various rights of potential heirs and beneficiaries.

Choice of law issues can affect an estate or heirship rights in many different ways. For example, in Bakalar v. Vavra, the U.S. Court of Appeals, Second Circuit, 08-5119 cv, was asked by heirs of a deceased art collector who died in a Nazi Concentration Camp to enforce their claim to a certain drawing that they asserted had been stolen from the decedent. As reported in the New York Law Journal on September 7, 2010, the lower Court had applied Swiss law in deciding that the artwork belonged to an American Art collector. The Appeals Court reversed the lower Court’s decision and determined that New York law should have been used to determine ownership and that further proceedings or a new trial was warranted. It appeared that New York law may favor the claim of the heirs.

As shown by the Bakalar case, issues concerning choice of law can have a significant impact on estate administration and the rights of parties involved in these proceedings. An experienced New York Probate attorney can assist with determining the proper laws to apply and protect the rights of parties interested in the estate.

Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years. If you or someone you know is involved with or has questions about a New York estate, please contact me at (212) 355-2575 or email:, for an initial consultation.

Contact Information