In what has become a familiar occurrence, a close family member or confidant such as a health care aide, arranges for the ownership of assets belonging to another to be transferred to the name of the family member or confident. These transfers often occur only a short time before the death of the individual owning the assets who is making the transfer. The transfers can take many forms such as an outright change of title on a deed or the mere addition of a name as a joint owner or beneficiary on a bank account or retirement fund or insurance. The result of such transfers is that once the transferring person dies, his or her estate has already been stripped of the property due to the pre-death transfer. When the person’s Last Will is probated, the estate plan and beneficiary designations that are set forth in the Will cannot be effectuated since there are no assets to implement the plan.
I have represented many clients in situations where such transfers have occurred. The unfortunate and distressing reality is that the client’s recently deceased parent or other loved one would never have transferred all of their assets prior to death and, in effect, disinherited their close family members. Demonstrating that the pre-death transfers were improper and wrongful can be difficult.
At this juncture, Court intervention becomes imperative. The Surrogate’s Court Procedure Act [SCPA] provides for proceedings by which wrongfully transferred assets of a decedent may be recovered by an estate. These proceedings are commonly referred to as Turnover Proceedings. The most common form of such legal action is found in SCPA Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information”.
Both intestate and probate estate settlement can benefit from utilizing the statutory process of SCPA 2103 to recover estate assets. A recent example of the use of this law was seen in the case of the Estate of Hill, Surrogate’s Court, Queens County as reported in the New York Law Journal on August 19, 2011. In Hill a Preliminary Executor sought to recover the decedent’s real estate that one of the decedent’s daughters had transferred to herself prior to the decedent’s death using a power of attorney that authorized the making of gifts. The Preliminary Executor also sought to recover bank account transfers, as well. While Hill involved procedural motions prior to a final determination of the merits, the scenario of possible wrongful pre-death transfers using a power of attorney illustrates the problems facing many estates and family members. Although the preparation of a Last Will and New York estate plan are essential, very often a watchful eye and general oversight of an older family member’s affairs is equally important and can protect them from exploitation.
New York Probate and Estate Planning Attorney Jules Martin Haas, Esq. has been representing clients in estate settlement in New York including Nassau and Suffolk County 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: firstname.lastname@example.org, for an initial consultation.