Articles Posted in Estate Litigation

Estate litigation in the Surrogate’s Court is common. There are many different types of proceedings where parties engage in conflict. Probably the most well-known area of litigation in an estate is a Will Contest. When a Will is contested and Objections to probate are filed, there can be many months and sometimes years of Court proceedings regarding the validity of a Will.

Another well-known area of dispute involves Accountings that are filed by an estate fiduciary such as an Executor or Administrator. Beneficiaries of estates and trusts often have Objections to the manner in which a fiduciary has collected or handled estate assets. In these cases there are usually questions regarding a breach of a fiduciary duty. Continue reading

Did you know that an estate is typically comprised of many different types of assets? These assets may include bank and financial accounts, retirement funds, life insurance and real estate. It is not uncommon for real estate to constitute the most valuable item in an estate.

Real estate in a general sense can include single or multi-family residential property, commercial property, condominiums and co-operative apartments. When there are disputes regarding real estate in which a decedent had an interest, the question often arises as to whether the Surrogates Court is the appropriate forum to litigate such issues.

For example, the New York Probate Lawyer Blog has published numerous posts discussing the problems presented when third parties occupy estate property. Generally, when a person is improperly occupying real estate, in a typical landlord-tenant type of situation, the property owner will commence a proceeding in the New York City Civil Court landlord-tenant part (or similar Court outside of NYC), to evict the holdover or non-authorized occupant.

The gross estate of a decedent includes many different types of assets. There are assets such as bank accounts and real estate that were owned by the decedent in his name alone at the time of death. These assets would be subject to the control of an estate executor or administrator.

Other assets may pass outside of the administration estate by operation of law. For example, there may be items owned as joint tenants such as bank accounts or items such as life insurance where there is a designated beneficiary. In these cases the asset is owned immediately upon the decedent’s death by the joint owner or specified beneficiary. The New York Probate Lawyer Blog has posted many articles discussing the various types of estate assets and the ownership issues that can be involved. In particular, the ownership of joint assets by a decedent tends to result in estate litigation. This especially so where there are questions as to the validity concerning the creation of the joint account or the manner in which a joint tenant accessed the decedent’s funds prior to death. Since the joint asset passes outside of the estate administration, the decedent’s Will beneficiaries or heirs at law if the decedent died intestate, cannot receive a share of the joint asset value. Continue reading

One of the primary duties of an estate Executor or Administrator is to collect estate assets. Most of the time this activity is not complicated. For example, a fiduciary may just need to close the decedent’s bank account or brokerage account and deposit the funds into the estate bank account.

Sometimes this process can be more complicated, especially when the decedent’s assets are being withheld by a third party. This claimant may assert that he owns the property and that the decedent has no right to recover it. In other cases, the claimant may deny having the property in his possession. Continue reading

One of the statutes that is most commonly utilized by an estate executor or administrator is Surrogate’s Court Procedure Act (SCPA) Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information.” This provision allows the estate fiduciary to commence a proceeding in the Surrogate’s Court whereby information can be obtained from a third party that is suspected of withholding property belonging to a decedent.

The more common name for this type of matter is a “turnover proceeding”. The third party is being asked to turn over to the fiduciary certain property that the decedent owned. There have been a number of articles concerning this process in the New York Probate Lawyer Blog. Continue reading

Many estates in New York have assets that include real estate. The most common situation is that a decedent owned a single or multi-family home. Very often the home was the decedent’s residence at the time of death. Additionally, other family members may have been living in the home. The problem that is encountered is that the real estate residence needs to be sold or transferred as part of the settlement of the estate. The continued occupancy of the residence by family members can prevent the sale or transfer.

The New York Probate Lawyer Blog has discussed this issue in a number of earlier posts. There are a number of avenues that an estate executor or administrator can follow to seek possession of the property and evict the remaining occupants. A turn-over proceeding can be commenced in the Surrogate’s Court. Also, it may be possible to obtain an eviction in the local housing or Landlord-Tenant Court. These proceedings, whether brought in the Surrogate’s Court or the Landlord-Tenant Court, seek to have occupants removed from estate property. Continue reading

A Will Contest in New York has been the subject of numerous articles in the New York Probate Lawyer Blog. After a petition for the probate of a Will is filed, notice of the petition must be given to the decedent’s distributees.  The distributees (next of kin) have a right to object to probate. In the event the Will is ultimately denied probate, the decedent’s estate is distributed according to the laws of intestacy.  In such a case a distributee who was disinherited under the Will can receive his intestate share of the decedent’s estate.

When a distributee seeks to challenge a Will he can proceed to obtain information regarding the decedent’s testamentary capacity, the due execution of the Will and whether the Will was the subject of undue influence, fraud or duress. The initial phase of this discovery process is usually performed pursuant to Surrogate’s Court Procedure Act (SCPA) 1404. My blog has discussed this statute on many occasions. Pursuant to the provisions of this statute, the potential Objectants can obtain the deposition testimony of the attesting witnesses and the attorney who drafted the decedent’s Last Will. Also, documents concerning the decedent’s estate plan, finances and health status can be obtained. Continue reading

One of the most commonly utilized procedures to assist an estate Executor or Administrator to locate and obtain estate assets are the provisions provided by Surrogate’s Court Procedure Act (SCPA) 2103 and 2104.   SCPA 2103 is entitled “Proceeding by fiduciary to discover property withheld or obtain information” and SCPA 2104 is entitled “Inquiry; trial and decree”.

These two statutes when read together provide a two stage method for the discovery and turnover of any assets that are owned by a decedent. The New York Probate Lawyer Blog has discussed this issue in a number of prior posts. Continue reading

When a decedent dies his estate is subject to the process of either probate or intestate administration. It is not uncommon that in either situation there may be many issues that require estate litigation in the Surrogate’s Court. These controversies can take many forms such as Will Contests, Kinship Hearings and Contested Accountings.

Estate lawyers are familiar with the Court procedures that are involved with such proceedings.  One of the commons aspects of estate disputes is that parties are entitled to discover information from the opposing party and others concerning the issues involved in the case.   Continue reading

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

Contact Information