Articles Posted in Estate Litigation

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

When a fiduciary is appointed to administer a decedent’s estate, one of the main objectives is to collect and protect a decedent’s assets. Thus, Administrators and Executors typically search through the decedent’s papers and records to learn about the decedent’s financial estate.

In most cases it is rather straight forward to find bank account statements, brokerage accounts and real estate titles. However, as New York City estate lawyers know, there are many instances when determining and collecting a decedent’s valuable assets can be very difficult. Continue reading

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

Contact Information