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Articles Posted in Estate Litigation

shutterstock_1010278675-300x200One of the responsibilities of a fiduciary, whether an Executor, Trustee or Administrator, is to discover, administer and protect the assets of an estate or trust.  When assets are in the form of bank accounts or other financial funds, these items can be transferred into a new estate or trust account and controlled thereafter by the fiduciary.

Many trusts and estates own different kinds of assets.  One of the most valuable assets is real estate.  This item may be in the form of residential property such as a single family home or even a condominium.  There may also be vacant land or commercial property.  A very common problem faced by a fiduciary is that a third party is occupying the estate or trust real estate without the right to remain there.  Such improper occupancy can cause problems with the management of the real estate since access to the property may be restricted.  Also, the presence of an authorized occupant may interfere with the sale of the real estate or lower its market value.

In these situations, the fiduciary usually can bring eviction type proceedings in the Surrogate’s Court or the appropriate landlord-tenant Court.  I have represented fiduciaries and occupants in these eviction cases on many occasions.  The New York Probate Lawyer Blog contains many posts dealing with real estate matters and also evictions.

Citation-300x200As a New York Estate Lawyer, I am frequently contacted by individuals who have received a paper from the Surrogate’s Court that is titled at the top with the word “CITATION.”  Most people are not familiar with the procedures involved in estate settlement or estate litigation cases or the requirements in the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA) regarding the giving of notice to other parties.

A Citation is similar to a Summons that is served on a party when a civil lawsuit is commenced. In a civil lawsuit parties are generally referred to as plaintiffs and defendants.  In the Surrogate’s Court, the references are usually petitioners and respondents.  A Citation is issued by the Court Clerk and indicates that some type of proceeding has been started in the Court.  This is typically the Clerk in the department of the Court in which the proceeding is filed.  For example, if a probate proceeding has been filed, then the probate clerk generally issues the Citation.

The Citation is the Court paper that is used to notify interested parties about the commencement of a case.  SCPA section 306 entitled “Citation” provides the various requirements regarding the information that the Citation must contain.  Among other items, it should identify the name and domicile of the person whose estate is the subject of the case.  It also needs to list the names of all the persons who are to be served with the paper.  Proper service of the Citation is essential since it allows the Court to obtain jurisdiction over all the parties to be served and to make a determination regarding the issues that may be presented.  The various sections of the estate laws must be carefully reviewed to learn the proper manner of service of the Citation.  Typically, personal delivery is needed for service on parties in New York while certified mail may be allowed for out of state respondents.

There are many different proceedings in the Surrogate’s Court.  Such matters include the following:  probate proceedings, administration proceedings, accounting proceedings, and kinship hearings to name a few.  It is not uncommon in these cases for there to be estate litigation or controversies regarding the issues being presented to the Court.  For example, when a Last Will and Testament is being offered for probate it is possible that an interested party may contest the Will.

Similarly, when a person dies intestate and someone files an administration proceeding to be appointed as the estate administrator, questions may arise as to the kinship of the decedent.  There may even be a necessity to hold a kinship hearing to resolve this question.  There may also be a dispute as to which family member should be appointed as the administrator.  The New York Probate Lawyer Blog has posted many articles regarding probate and administration matters and various types of Surrogate’s Court litigation.

The vast majority of contested and litigated matters in the Court are ultimately settled between the interested parties. New York Civil Practice Law and Rules Section 2104 entitled “Stipulations” contains requirements for stipulations to be enforceable.  Settlements are favored by the Court and are usually advantageous to the individuals involved in a case.  There are many reasons that favor a negotiated settlement.  First and foremost, the outcome of litigation is typically uncertain.  Therefore, rather than risk an all or nothing approach, each side ultimately accepts a resolution that provides them with a benefit although somewhat less than what might have been received if the case was ultimately won.  This avoids the risk of a total loss.  Also, Court proceedings can be exceedingly lengthy.  The time for a matter to progress through the judicial system can take years.  Sometimes it is better to accept an early resolution rather than wait for an extended period of time to reach an uncertain result.  Estate settlement may be delayed.

shutterstock_1403735534-300x200There are many different types of proceedings in the Surrogate’s Court. New York Estate lawyers are involved with probate, administration, accounting and kinship proceedings just to name a few of the most common ones. In each of these matters, the estate laws which are contained in the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL) require that notice of the proceeding and Court dates must be provided to interested parties. In most cases, interested parties include a decedent’s next of kin which are referred to as distributees. The New York Probate Lawyer Blog had discussed many of these estate proceedings.

For example, when a Last Will and Testament is offered for probate, notice must be given to the decedent’s distributees. This is because these individuals have a right to Object to the Will. In the event the Will is determined to be invalid, then the estate assets are distributed to the distributees pursuant to EPTL 4-1.1 entitled “Descent and distribution of a decedent’s estate.” Such distributions may be more favorable to the distributees than the terms of a Will which might disinherit such persons.

The most common form of notice is a Citation which is served on the interested party and tells them the nature of the case and provides a date, time and location for them to appear in Court to present their objections or position regarding the subject of the matter before the Court. Persons involved with estate litigation and estate controversies are familiar with Citations.

Planning a New York estate is an ongoing process. There are always various matters to be considered. Many aspects in a person’s life change over time. The nature and value of assets may fluctuate. Also, the identity of the beneficiaries can vary. There can be new potential beneficiaries such as a new spouse, or children or grandchildren; or a person’s intentions regarding naming fiduciaries may require amending old estate planning papers. Whatever the reason, the start of a New Year is as good a time as any to think about and implement necessary changes.

Each individual has a plan that is unique to his own situation. Documents that should be considered include a Last Will and Testament, Living Will, Health Care Proxy, Power of Attorney and Living Trust.

A recent article written by Jamie P. Hopkins, Esq., appearing at on December 3, 2019 entitled “10 Common Estate Planning Mistakes (and How to Avoid Them)”, provides a good summary of areas that should be considered. The first area covered is entitled “Not having a real plan in place.” This topic is particularly important because without any plan, a person cannot control the disposition of his estate. When a person dies without a Will, Estates, Powers and Trusts Law Section 4-1.1 directs how the intestate estate is to be paid out. It is much better to have estate planning papers specifically state which beneficiaries are to receive assets than to leave the decision to New York estate law. The New York Probate Lawyer Blog has posted many articles regarding estate administration and Wills.

Inheritance rights in New York are mainly found in Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.” This section provides the priority of persons who have rights of next of kin to receive a share of a decedent’s estate when there is no Last Will and Testament. As can be expected, a surviving spouse and children have the primary rights when there is an intestate estate.

Estate Attorneys in New York are aware that there are additional estate laws that provide family rights. One of the statutes is EPTL 5-1.1-A entitled “Right of election by surviving spouse.” Pursuant to this provision, a spouse who survives a decedent can make an election to receive a one-third share of a decedent’s estate even if the survivor was entirely left out of a Last Will. Essentially, this statute prevents the living spouse from being completely disinherited. In contrast, a person has a right to totally disinherit children or any other relative or friend. Only spouses receive protection under the New York estate laws. The New York Probate Lawyer Blog has discussed spousal and other family kinship and inheritance issues in earlier posts.

In order to secure spousal rights under EPTL 5-1.1-A, a person must file a notice of election within six months after the date of issue of letters testamentary or letters of administration but no later than two years after the decedent dies. The statute provides for service of the notice on an estate fiduciary and for filing in the Surrogate’s Court. The Surrogate does have the discretion to extend the time for reasonable cause. However, the statutory time periods are typically strictly adhered to.

When a person dies without a Last Will and Testament he is said to have died intestate.  In these cases the decedent’s estate is distributed pursuant to the laws of intestacy. Estates, Powers and Trusts Law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, provides the list of persons who are entitled to receive a share of the intestate estate.  The New York Probate Lawyer Blog contains many articles discussing estate administration.

If kinship is not difficult to determine, the priority list of beneficiaries under EPTL 4-1.1 controls estate distribution.  When a person dies without a spouse or children, his distributees are his parents.  However, under EPTL 4-1.4 entitled “Disqualification of parent to take intestate share”, a parent can be prevented from receiving his share of a decedent’s estate if he either fails or refuses to provide for a child or abandons the child.  Thus, if the parent does not support a child he can lose his inheritance.  An abandonment qualifies for the same result.

While instances of such disqualifications are not common, there are cases where the parent forfeits his rights.  In a Bronx estate case  entitled Estate of Umezurike decided on September 9, 2019 by Bronx Surrogate Nelida Malave-Gonzalez, a father was found to have been disqualified from receiving his share of proceeds from a wrongful death action when his son died.

In Surrogate’s Court proceedings there are many instances where a party can file Objections.  Estate Litigation usually involves matters that are commenced with a Petition.  For example, in Probate Cases, the probate process is started by filing a Petition for Probate and Letters Testamentary.  Similarly, when a decedent dies without a Last Will, a petition for Letters of Administration is filed to begin the process to administer an intestate estate.

Another example of a Surrogate’s Court petition is one to settle or approve the accounting of an Executor or Administrator.  When these various types of petitions are filed with the Court official notice, usually in the form of a Citation, is given to the parties who have an interest in the outcome.

These parties usually have a right to file Objections to the various petitions.  Thus, there can be Objections to Probate which lead to a Will Contest.  Also, it may be necessary to Object to the matters set forth in an accounting by an Administrator or Executor.

An executor or administrator of a New York estate has the duty to identify and collect all of the assets belonging to a decedent.  These assets include bank accounts, stocks, bonds, retirement accounts such as IRA’s, and real estate.  Once these items are collected and the estate bills and claims are paid, a distribution can be made to the estate beneficiaries.

It is not uncommon for fiduciaries to become engaged in estate litigation regarding the collection of assets.  Third parties may claim to own items that were obtained from a decedent in wrongful or questionable ways.  For example, someone may be the title owner of a bank account or real estate which was transferred to them shortly before the decedent’s death and at a time when the decedent lacked capacity due to illness or injury.  The estate administrator or executor may try to recover such assets claiming that the decedent lacked capacity and was unduly influenced at the time of the transfer.  The New York Probate Lawyer Blog has published many articles concerning the recovery of assets by an estate.

There are also instances where a third party may claim that the decedent’s estate is holding property that really belongs to the third party.   In these cases the third party owner can commence a proceeding in the Surrogate’s Court under Surrogate’s Court Procedure Act (SCPA) 2105 to recover the items from the estate.   SCPA 2105 is entitled “Proceeding to compel delivery of property by a fiduciary which is claimed by another or others”.

The estate fiduciary is responsible to collect and protect estate assets. These assets may be bank accounts, retirement funds or brokerage accounts. In many estates the most valuable estate is the decedent’s residence which can be a single family home or a cooperative apartment or a condominium unit.

The New York Probate Lawyer Blog has provided a number of articles discussing the problems that arise when a decedent’s property is occupied by third parties. These occupants can be relatives, friends or just tenants. However, the Executor or Administrator of an estate may need to have the property vacated so that it can be sold. Major disputes and estate litigation arises when the occupants refuse to vacate. Continue reading

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