Articles Posted in Estate Litigation

shutterstock_96626983-300x300The procedure and terminology in a case involving a New York estate can be perplexing to those unfamiliar with this area of the law.  Surrogate’s Court matters typically involve statutes that are part of the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).

The Surrogate’s Court is the forum in which matters such as the probate of a Last Will and Testament or the administration of an intestate estate are presented.  This kind of a case is a separate proceeding.  There are numerous additional types of proceedings, most of which concern the affairs of a decedent.  For example, there are accounting proceedings, kinship proceedings, turn-over proceedings and proceedings to remove an executor or administrator from office.  Since each proceeding is like a separate lawsuit, it is necessary for the Court to be certain that jurisdiction is obtained over all of the interested parties.  In this manner, the Court is assured that when it makes a decision in the case, its ruling will bind all of the interested parties and all of the interested parties will be given the opportunity to be heard and to protect their interests.

In each proceeding, the initiating party must provide the Court with full information regarding the identity and address of all interested parties.  If any of his information is unknown, the Court must be advised as to the missing information and the efforts made to obtain these facts.

The executors and administrators of a New York estate have a fiduciary responsibility to collect and protect estate assets.  In the event these fiduciaries fail to act in a responsible manner, the administrator or executor’s malfeasance would constitute a breach of fiduciary duty.

When a situation arises where it appears a third party is withholding assets that belong to a decedent’s estate, it is the responsibility of the fiduciary to pursue the recovery of the property or the value thereof.  Fortunately, the Surrogate’s Court Procedure Act provides a statutory procedure to obtain recovery of the property of an estate.  The rules and procedures are contained in SCPA Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information.”  This section of the law, along with SCPA Section 2104, entitled “Inquiry; trial and decree,” give the estate representatives broad discovery to ferret out information about possible estate assets and to prosecute a hearing or trial for return of the property.  The New York Probate Lawyer Blog has discussed these discovery and turnover proceedings in many posts over the years.

The Surrogate’s Court routinely has these matters appear on the Court calendars.  I have represented many clients in such proceedings.  A recent Albany estate case provides yet another insight into such matters.  In Matter of Mahoney, decided on August 8, 2018 by Albany Surrogate Stacy Petit, the executors of an estate sought to recover claimed estate assets including bank funds which the decedent had transferred to her long-time friend while she was still alive.  An interesting part of the case was that the bank transfer occurred with telephone authorization by the decedent.  While the executors argued that it was not common for the decedent to transfer funds by telephone authorization, the Court found that the overall evidence did not show such transaction would not have taken place.  Particularly, it seems the friend needed the funds sent quickly to complete a purchase.  After reviewing all of the facts, the Court rejected the executor’s claims and found that the bank funds were not assets of the decedent since they were properly transferred prior to her death.

shutterstock_1010278675-300x200In a recent post in the New York Probate Lawyer Blog, we discussed the necessity of reviewing various documents that may have an impact on a person’s estate planning or the administration of his estate.  Such papers would include divorce or matrimonial agreements and business papers.

A recent Manhattan estate case decided by Manhattan Surrogate Nora Anderson on July 6, 2020 provides an excellent example of the need to examine such papers and agreements.  In Estate of Kaufman, the decedent left a Last Will and Testament in which his estate was disposed of between a nephew and another relative.

The decedent was survived by his wife but did not provide for her in his Will.  Prior to his death, the decedent was engaged in a divorce action with the wife.  While the divorce was not finalized before his death, the couple had signed a Stipulation in which the parties divided their marital assets.  The agreement also contained a comprehensive provision by which each waived their rights to share in the other’s estate.

shutterstock_635914376-300x144The forum for proceedings regarding a decedent’s estate is typically the Surrogate’s Court.  Probate proceedings and requests for intestate administration are filed in the Surrogate’s Court in the county where the decedent lived.  For example, if the person lived in Manhattan, the estate proceedings would be filed in the New York County Surrogate’s Court.  This would be so even if the individual happened to die in a different location, say on vacation in another state or country.  The New York Probate Lawyer Blog should be referred to for numerous articles regarding estate proceedings.

Sometimes a litigant may want to commence a legal action regarding an estate in Federal Court rather than the local New York Surrogate’s Court.  However, initiating estate cases in Federal Court may be prohibited.  This is due to a well-known Federal Court rule called the Probate Exception.

In order to utilize the Federal Courts, there needs to be a basis for the Federal Court to have jurisdiction.  Basically, there must be a Federal question presented or diversity jurisdiction.  However, even where diversity jurisdiction may exist, the Federal Probate Exception may preclude Federal Court involvement.  This is what occurred in a recent case decided by Federal District Court Judge Kiyo Matsumoto on May 29, 2020 entitled McKie v. Estate of Dickinson.

Estate planning and creating a Last Will and Testament is important.  However, during the planning process, attention must be given to the eventual probating of the Will.  When a Will is admitted to probate by the Surrogate’s Court, the effect is to validate the terms and provisions in the document.  At that time the executor is granted letters testamentary and can begin the estate settlement process.

The New York estate laws and procedures require that notice of the probate case be provided to the decedent’s heirs at law who are known as distributees.  These persons have a right to object to the probate of the Will.  The New York Probate Lawyer Blog contains many posts with information about probate and many other estate and guardianship issues.

A Will contest is a proceeding that involves extensive estate litigation.  Similar to most types of controversies, the relevant law allows for extensive pre-trial discovery.  Simply put, discovery allows each party to obtain documents and testimony from various sources for the purpose of discovering information and evidence to be potentially presented at a trial or other Court hearing.

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.

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