Articles Posted in Estate Administration

Beneficiaries of an Estate in New York may be determined in a number of different ways.  The most recognizable method of beneficiary designation is the naming of an individual or institution to receive a benefit in a Last Will.  There are many different types of dispositions that can be made in a Will such as leaving a specific item or property to a beneficiary or by just setting forth that the beneficiary is to receive a certain share or percentage of an estate.

Another method of beneficiary selection is where a decedent does not prepare a Last Will. When a person dies intestate his estate is distributed to his distributees (i.e. heirs at law). The persons who qualify as distributees are determined by the New York Estate laws. Estate Lawyers in New York are familiar with Estates, Powers and Trusts Law (EPTL) Section 4-1.1 which provides the priority of the individuals entitled to share in the intestate estate. EPTL 4-1.1 is entitled “Descent and distribution of a decedent’s estate”. This statute has been discussed in many prior articles in the New York Probate Lawyer Blog. Continue reading

Fiduciaries who are appointed by the Surrogate’s Courts in New York have many responsibilities.  The fiduciary can be an Executor or an Administrator.  It is very common for a decedent’s estate to have amongst its assets real estate.  In fact, in many situations a decedent’s home may be the most valuable asset of an estate.

Single and multi-family homes exist throughout the New York Metropolitan area and over the years the value of these properties have increased dramatically. The New York Probate Lawyer Blog has provided numerous posts that discuss issues relating to the eviction of persons who occupy estate real property. To re-cap, when a person dies the house in which he/she lived may continue to be occupied by someone who is not entitled to receive the entire property either pursuant to a Last Will or through intestate administration. The occupant could be a third-party tenant or perhaps even a relative of the decedent. Continue reading

An Executor or Administrator in New York has a duty to discover and collect all of the assets that rightfully belong to a decedent’s estate.  If the estate fiduciary fails to perform this task properly the estate beneficiaries may claim that there was a breach of a fiduciary duty.

Identifying and collecting estate assets requires that the fiduciary act diligently and pursue proper avenues to complete his obligations. The New York Probate Lawyer Blog has previously discussed some of the Estate Litigation procedures that can be used to recover estate property. For example, Surrogate’s Court Procedure Act (SCPA) Section 2103 provides a very common method to obtain estate assets. This statute is entitled “Proceeding by fiduciary to discover property withheld or obtain information.” When an executor or administrator has information that a third party has possession of an asset that belongs to an estate, the fiduciary can file a petition with the Surrogate’s Court to obtain the property. SCPA Sections 2103 and 2104 contemplate two types of Court proceedings. First, the statute allows the fiduciary to obtain information from the third-party by deposition questions and paper discovery as to whether the person is actually in possession of estate property. If so, the statute then provides for a proceeding in which the actual ownership of the property can be determined. Continue reading

One of the more common problems that is encountered by estate Executors and Administrators is the recovery of a decedent’s property from third parties. New York Estate Attorneys frequently need to counsel fiduciaries regarding the Court procedures to obtain assets that belong to an estate. I have represented fiduciaries in numerous cases to recover property.

Very often an Executor or Administrator is confronted with a situation where a house or apartment that was owned by the decedent continues to be occupied by persons’ after the decedent dies. Moreover, such occupants refuse to vacate the property which prevents the Executor from selling the property and completing estate settlement. Continue reading

A New York Estate Planning attorney is familiar with the numerous issues that need to be reviewed when creating estate planning documents. Such documents include Last Wills and Living Trusts.

As pointed out in the New York Probate Lawyer Blog, a fundamental aspect in the planning process is understanding the property owned by a person and the manner in which such asset is held. For example, real estate interests can be owned by someone in their individual name or in their name as a joint tenant with another person or as a tenant in common with others. When a person dies, an asset that is owned jointly or with a designated beneficiary passes to the joint owner or designee outside of the decedent’s estate. Thus, such property would not be subject to the terms of a Last Will or the laws of intestacy. Continue reading

When a person dies without a Last Will and Testament he is deemed to have died intestate. As discussed in many earlier posts in the New York Probate Lawyer Blog, where there is an intestate decedent, a petition needs to be filed with the Surrogate’s Court seeking Letters of Administration.

The estate administrator has similar statutory powers to those of an executor where a person leaves a Will. There are numerous issues that can arise in the context of intestate administration. A recent case decided on October 9, 2015 by Brooklyn Surrogate Diana Johnson entitled Estate of Evans provides an interesting analysis of just some of the legal and factual complexities. Continue reading

Executors and Administrators in New York have many different duties and fiduciary obligations.  The New York Probate Lawyer Blog has discussed the importance of a fiduciary acting properly and protecting estate assets.

A source of controversy in estate administration often involves the ownership and management of real estate. Typically, a decedent’s home and other real estate holdings constitute the most valuable asset in an estate. Sometimes, a relative of the decedent or friend may have been living with the decedent for many years prior to the decedent’s death. Once a fiduciary is appointed to handle estate matters, the executor or administrator will need to take control over the real estate. This may result in the need to evict the persons who had been living with the decedent. The fiduciary must be able to protect the real estate and control it since there is a fiduciary obligation to safeguard estate property. As can be imagined, the long-time occupant of the property may oppose or interfere with the fiduciary’s activities and claim that they have a right to continue to occupy or even own the home. In these cases the fiduciary needs to commence Surrogate’s Court proceedings or Landlord-Tenant eviction proceedings to obtain control over the real estate. In some cases the Court may issue an injunction and stop the occupant from interfering with the executor or administrator or otherwise causing harm to the property. Continue reading

The probate process in New York can be very complex. When a person dies and leaves a Last Will and Testament it is necessary to probate the decedent’s Will to have an Executor appointed to administer the estate. There have been many articles published in the New York Probate Lawyer Blog providing information regarding probate issues.

The presentation of a petition to the Surrogate’s Court which seeks probate of a Will essentially asks the Court to validate the Will and appoint an Executor. The Court issues Letters Testamentary to the appointed Executor. Continue reading

Estate planning in New York is an important consideration for many reasons. In addition to designating the manner in which a persons assets are to be distributed, an important aspect of planning is the nomination of an estate Executor. By creating a Last Will a testator can name the persons who are to act as Executors and also Successor Executors, if needed. Obviously, selecting the individuals that you trust and have confidence in to carry out the terms and intentions of the Will provisions provides the essence of insuring that a plan for estate settlement is accomplished.

When a person dies intestate, or without a Will, his estate becomes subject to the rules and laws concerning an Administration proceeding rather than the probate process. The Administration proceeding is focused on the appointment of an estate Administrator. Since there is no Will that nominates a fiduciary, the proceeding is controlled by Surrogate’s Court Procedure Act (SCPA) 1001 which is entitled “Order of priority for granting letters of administration”.  The statute provides the list of the decedent’s next of kin who have the right to be appointed as the estate Administrator. According to the statute, the decedent’s spouse has priority, then children, grandchildren, the decedent’s parents and then brothers and sisters. While the statute provides an orderly process for the appointment of an Administrator, the persons who have priority may not have been the first choice of the decedent if he had named an Executor in a Last Will. Continue reading

Fiduciaries such as Executors, Administrators and Trustees are frequently required to participate in proceedings in the Surrogate’s Court. There are many different types of cases in the Court such as probate and administration proceedings and accountings. For example a Brooklyn Estate Lawyer might be retained by an Executor to represent the executor in a discovery proceeding to recover assets that are claimed to have belonged to the decedent. Similarly, a Bronx Estate Attorney may be hired by a fiduciary to assist with the interpretation or construction of a Last Will or Trust Agreement that is ambiguous.

There are occasions when the Executor or other fiduciary may find hiring an attorney to be difficult because the estate or the trust either does not have any assets or the assets are not liquid or available to pay counsel fees. A question would then arise as to whether the fiduciary could represent himself pro se in his capacity as a fiduciary. This issue was recently presented to Manhattan Surrogate Nora Anderson in “Matter of Van Patten” which was decided on February 10, 2014 and reported in the New York Law Journal. In Van Patten the non-attorney Executor of the estate of a trust income beneficiary sought to represent herself pro-se in the trustee’s accounting proceeding. The Court found that the Executor, as a fiduciary, had obligations to potential estate beneficiaries and creditors and the pro-se representation by a non-attorney fiduciary would constitute an unlawful practice of law. The Executor was directed to retain an attorney or risk having the estate’s objections to the trust accounting dismissed.

As can be seen from this case, representation of a fiduciary in Surrogate’s Court proceedings can be quite complex. A fiduciary has numerous obligations and must protect the interests of estate beneficiaries as well as other parties such as creditors. As a New York estate attorney, I am familiar with the various duties that estate representatives must attend to as well as the laws and procedures involved with estate settlement. I assist my clients regarding these issues and work with them concerning all matters to finalize an estate.

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