Articles Posted in Estate Litigation

Executors and Administrators in New York have many fiduciary duties with respect to settling an estate. Most estate fiduciaries are close family members or friends of a decedent. Typically, a person will nominate a person that they know and trust to be the Executor of their estate. Since the estate fiduciary rarely has experience in administering an estate, the Estate Lawyer is heavily relied upon to provide guidance and to implement the necessary procedures to protect the interests of the estate and the estate beneficiaries.

One of the primary duties to be performed by the fiduciary is to find and collect estate assets. The New York Probate Lawyer Blog has published earlier posts talking about this area of estate settlement. If an executor or administrator does not fulfill his obligations to safeguard assets, he may be found to have breached a fiduciary duty. Continue reading

The probate of Wills in New York can be very complicated.  The Estates, Powers and Trusts Law (“EPTL”) Section 3-2.1 entitled “Execution and attestation of Wills; formal requirements” provides the basic requirements for the proper execution of a Will.  The New York Probate Lawyer Blog contains many articles discussing the basic Will execution requirements which include items such that a Will generally must be in writing, signed by the testator at the end and there needs to be at least two attesting witnesses.

Estate Lawyers in New York City sometimes prepare Wills that contain provisions known as “No Contest” clauses or “In Terrorem” clauses. Essentially, these provisions that can appear in a Last Will or a Living Trust provide that a beneficiary will forfeit his bequest or interest in the event he unsuccessfully challenges the validity of the document. EPTL Section 3-3.5 entitled “Conditions qualifying disposition; conditions against contest; limitations thereon” sets forth the statutory provisions regarding these types of clauses. Continue reading

When a person dies, one of the first tasks that a family and fiduciary face is to take control over the decedent’s residence. New York estate lawyers are aware that accessing and securing a decedent’s home can often be difficult and complicated.

To begin with, when a decedent lived alone and passes away in their home premises, the police department may seal the apartment to prevent unwanted intruders. When an apartment is sealed it would be necessary to make an application to the Surrogate’s Court to allow the apartment to be searched for the existence of a Last Will or insurance policies. Continue reading

Estate planning is an essential part of making certain that a person’s assets are managed and distributed in accordance with one’s intentions. New York Estate Lawyers counsel clients with regard to the preparation and execution of planning documents such as Last Wills, Living Wills, Health Care Proxies, Powers of Attorney and Living Trusts.

Once a person takes the time and effort to prepare the necessary planning papers it is important that the originals of the signed and notarized documents be maintained in a safe and secure location. Also, the papers should be stored in a place where they can be found and utilized should the occasion arise. Continue reading

Estate proceedings in New York typically involve the collection of assets that were owned by the decedent. In most cases the assets are easily identified and collected such as bank accounts or securities accounts.

As discussed in earlier posts in the New York Probate Lawyer Blog, there are occasions when third parties claim possession or title to assets that are estate property. When this happens the Executor or Administrator must commence litigation to recover these items. The starting point for this type of Court proceeding is Surrogate’s Court Procedure Act (SCPA) 2103 which is entitled “Proceeding by fiduciary to discover property withheld or obtain information”. This proceeding is generally known as a “turnover proceeding” and is used by the fiduciary to obtain information about withheld assets and to require that such assets or the proceeds of such assets be turned over to the fiduciary. Continue reading

The estate of a New York decedent contains many different types of assets. One of the most important items of ownership in an estate is real estate. These interests commonly constitute one of the estate’s most valuable assets. Since real estate holdings are so valuable and because the laws concerning real estate interests can be complex, estate executors and administrators can be engulfed by the need to resolve property issues during estate administration.

The New York Probate Lawyer Blog has had many posts discussing real estate issues that have arisen during the course of estate proceedings. One very common example of these issues occurs when the decedent dies and his residential home is also occupied by other family members. While the other family members have no title interest in the property, they often do not want to vacate the home where they lived with the decedent for many years. In these cases the estate fiduciary needs to have the family members move so that the property can be sold and the proceeds distributed to estate beneficiaries. When these differing interests collide, the result is that estate litigation in the Housing Court or Surrogate’s Court is needed to resolve the dispute. Continue reading

When a person dies and leaves a Last Will and Testament, the typical course to follow is to probate the Will.  This Blog has published many posts concerning the probate process.  The Will is filed with the Surrogate’s Court in the county where the decedent had his primary home.  A Probate Petition is also filed with the Court which asks the Court to admit the Will to probate.  Essentially, the request is to have the Court validate the document so that its provisions can then be followed in distributing the decedent’s estate assets.

After a Will is admitted to probate, letters testamentary are issued to the nominated Executor. In the probate proceeding, the Court issues a Citation which provides official notice to the decedent’s next of kin asking them to advise the Court as to whether they intend to object to the Will. Continue reading

New York Estate Lawyers frequently refer to Estates, Powers and Trusts Law (EPTL) Section 3-2.1 regarding the formalities required with regard to execution and witnessing of a Last Will. When a petition is filed with the Surrogate’s Court to have a Will admitted to probate, the statutes require that notice of the proceedings be given to the decedent’s next of kin (“distributees”). As discussed in many of the posts in the New York Probate Lawyer Blog, the distributees have a right to file Objections to the Will. In the event the Will is denied probate, then the decedent’s estate is distributed to the heirs as if the decedent died intestate. There are a number of basic Objections that can be set forth in Estate Litigation regarding a Will. These objections include lack of due execution, lack of testamentary capacity, undue influence and duress or coersion. A Will Contest is the part of the probate process where the issues regarding these various objections are finally determined.

The various grounds upon which to base a Will Contest do not generally involve other issues concerning the enforceability or interpretation of Will provisions. A recent case entitled Estate of Attea, decided by Erie County Surrogate Barbara Howe on June 17, 2015, reflects the limited issues involved when determining a Will’s validity. Continue reading

A very common issue that arises during the course of estate administration concerns assets that a decedent transfers close to the time of death. These transfers can be in the form of outright gifts or the creation of ownership rights such as a joint tenancy or through a beneficiary designation. For example, a situation may exist where a decedent transfers to another person as an outright gift funds from a bank account. Likewise, the decedent may add a person’s name to a bank account or change a beneficiary designation on an insurance policy or retirement account.

All of these events appear on their surface to be improper especially when the transfer occurs right before a person dies and, in particular, when the transferor is aged and/or suffering from a medical or psychological condition which may impair their judgment. Continue reading

The New York Probate Lawyer Blog has talked about many different aspects of estate settlement.  An estate fiduciary such as an Executor or Administrator has a fiduciary obligation to identify, locate and collect estate assets.

In numerous instances, the decedent may have been involved in business or other transactions where his ownership interest in assets may be unclear or complicated by other factors. Likewise, third parties may be in physical possession of assets that are claimed to be owned by an estate but might have been the subject of a gift. Regardless of the situation, the estate fiduciary must determine the true owner of the asset and use all reasonable efforts to collect the asset on behalf of the estate. A recent case decided by Brooklyn Surrogate Diana Johnson on April 21, 2015 entitled Estate of Elberg, provides insight into the problems that an estate executor may face in recovering estate items. Continue reading