Articles Posted in Estate Litigation

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

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