Articles Posted in Estate Litigation

There are many great reasons to create an estate plan. The New York Probate Lawyer Blog has published many posts discussing the basics of estate planning. Preparing and signing documents such as a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust allows a person to specifically set forth their property disposition and health care goals. An article that was published by Consumer Reports on April 14, 2015 entitled 6 Costly estate planning, minefields, and how to avoid them, provides a number of important planning considerations. For example, one of the points in the article cautions a person to know and understand the nature of their assets that would actually be controlled by a Will. Assets that pass to others by operation of law such as joint assets would not be subject to the Will provisions.

Once the decision is made to prepare a Last Will, it is imperative that the document itself and its execution be done to withstand a possible Will Contest. The New York Estates, Powers and Trusts law Section 3-2.1 entitled Execution and attestation of wills; formal requirements provides the statutory requirements for properly executing a Last Will. If these provisions of the law are not adhered to, a person’s estate plan may collapse due to a Contested Will. Continue reading

The process of administering an estate can be very complex. Estate Lawyers are familiar with the many issues and obligations that an Executor or Administrator may need to consider.  As discussed in numerous posts in the New York Probate Lawyer Blog, an estate fiduciary has the obligation to find and collect all of the estate assets. Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciary powers” sets forth the tasks that a fiduciary can perform including collecting and investing assets.

Sometimes it is not easy to determine and access property that is owned by a decedent. There are many cases where a person prepares a Last Will but places assets into joint ownership. Such joint ownership property is not controlled by the Will provisions.  The joint assets are transferred to the surviving joint owner upon the decedent’s death notwithstanding contrary provisions in a Last Will.  Generally, only assets that are titled in the decedent’s name alone end up being controlled by a Will.  It is not uncommon to find out after a decedent dies that shortly before death, many assets were transferred to joint accounts and, therefore, pass to owners outside of the controlling Will provisions. Continue reading

Estate Planning Attorneys in New York are familiar with the creation of Last Wills and Trusts in which primary and alternate Executors and Trustees are named. One of the main advantages to creating a Will or Trust is that the creator can select the persons he wants to act as a fiduciary to carry out his asset distribution directions in accordance with his intentions.

As discussed in many posts in the New York Probate Lawyer Blog, if a person dies intestate (i.e., without a Last Will) then the estate administrator is selected according to the statutory priority set forth in SCPA Section 1001. Continue reading

The Executor or Administrator of an estate owes a duty of fair dealing to all of the estate beneficiaries.  A New York Estate Lawyer who represents the estate fiduciary is aware that there must be a full accounting in order to finally settle the estate affairs.

In most cases, the estate fiduciary will prepare an estate accounting which specifies all of the assets and income that was collected by the estate. The accounting also lists all of the debts and administration expenses which were paid out of estate funds. The New York Probate Lawyer Blog has posted a number of articles discussing accountings in an estate. When the account is prepared, all of the estate beneficiaries have an opportunity to review the various schedules and to inquire as to any matters that might be questionable. This process is usually done on an informal basis. Once all of the interested parties are satisfied with the accounting, they typically sign a Release form that provides that they have no objection to the information in the accounting and thereby release the fiduciary from any claims they have regarding the fiduciary’s conduct in administering the estate. Continue reading

One of the fundamental aspects of estate planning and settling an estate is determining the nature of a person’s assets. When planning an estate a New York City Estate Attorney typically examines the ownership of various types of assets. For example, a bank account may be owned in a variety of ways. The account may be held in the name of a person alone or it may be in the name of the person with a designated beneficiary to receive the account funds on the death of the account holder. Additionally, the account may be held in the joint names of the person along with another person who has rights of survivorship. Thus, the account would be paid automatically to the surviving joint owner.

The issues that arise in connection with joint assets tend to fill the Surrogate’s Court calendars. The New York Probate Lawyer Blog has discussed in many posts that a Last Will only controls assets that are in a person’s name alone. Joint assets and other items such as retirement funds that have named beneficiaries are distributed outside of the Will by operation of law. Continue reading

Executors and Administrators in New York have many fiduciary duties with respect to settling an estate. Most estate fiduciaries are close family members or friends of a decedent. Typically, a person will nominate a person that they know and trust to be the Executor of their estate. Since the estate fiduciary rarely has experience in administering an estate, the Estate Lawyer is heavily relied upon to provide guidance and to implement the necessary procedures to protect the interests of the estate and the estate beneficiaries.

One of the primary duties to be performed by the fiduciary is to find and collect estate assets. The New York Probate Lawyer Blog has published earlier posts talking about this area of estate settlement. If an executor or administrator does not fulfill his obligations to safeguard assets, he may be found to have breached a fiduciary duty. Continue reading

The probate of Wills in New York can be very complicated.  The Estates, Powers and Trusts Law (“EPTL”) Section 3-2.1 entitled “Execution and attestation of Wills; formal requirements” provides the basic requirements for the proper execution of a Will.  The New York Probate Lawyer Blog contains many articles discussing the basic Will execution requirements which include items such that a Will generally must be in writing, signed by the testator at the end and there needs to be at least two attesting witnesses.

Estate Lawyers in New York City sometimes prepare Wills that contain provisions known as “No Contest” clauses or “In Terrorem” clauses. Essentially, these provisions that can appear in a Last Will or a Living Trust provide that a beneficiary will forfeit his bequest or interest in the event he unsuccessfully challenges the validity of the document. EPTL Section 3-3.5 entitled “Conditions qualifying disposition; conditions against contest; limitations thereon” sets forth the statutory provisions regarding these types of clauses. Continue reading

When a person dies, one of the first tasks that a family and fiduciary face is to take control over the decedent’s residence. New York estate lawyers are aware that accessing and securing a decedent’s home can often be difficult and complicated.

To begin with, when a decedent lived alone and passes away in their home premises, the police department may seal the apartment to prevent unwanted intruders. When an apartment is sealed it would be necessary to make an application to the Surrogate’s Court to allow the apartment to be searched for the existence of a Last Will or insurance policies. Continue reading

Estate planning is an essential part of making certain that a person’s assets are managed and distributed in accordance with one’s intentions. New York Estate Lawyers counsel clients with regard to the preparation and execution of planning documents such as Last Wills, Living Wills, Health Care Proxies, Powers of Attorney and Living Trusts.

Once a person takes the time and effort to prepare the necessary planning papers it is important that the originals of the signed and notarized documents be maintained in a safe and secure location. Also, the papers should be stored in a place where they can be found and utilized should the occasion arise. Continue reading

Estate proceedings in New York typically involve the collection of assets that were owned by the decedent. In most cases the assets are easily identified and collected such as bank accounts or securities accounts.

As discussed in earlier posts in the New York Probate Lawyer Blog, there are occasions when third parties claim possession or title to assets that are estate property. When this happens the Executor or Administrator must commence litigation to recover these items. The starting point for this type of Court proceeding is Surrogate’s Court Procedure Act (SCPA) 2103 which is entitled “Proceeding by fiduciary to discover property withheld or obtain information”. This proceeding is generally known as a “turnover proceeding” and is used by the fiduciary to obtain information about withheld assets and to require that such assets or the proceeds of such assets be turned over to the fiduciary. Continue reading

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