Articles Posted in Estate Settlement

Executors and Administrators appointed by the Surrogate’s Court have many duties and responsibilities. New York Estate Lawyers who represent fiduciaries typically assist their clients in connection with determining and paying estate liabilities. These liabilities can be in the form of debts and claims owed by the decedent such as unpaid credit card bills, mortgages or other monetary obligations. Additionally, the decedent may have owed past due income taxes or taxes that are to become due relating to the decedent’s final income tax return.

Regardless of the nature of the debt or obligation, the estate fiduciary must find and pay the monies that are due or risk becoming personally liable if all estate assets are paid out before all creditors are satisfied. Continue reading

One of the first and sometimes most difficult tasks faced by an Executor or Administrator of an estate is to identify, protect and collect the assets of a decedent’s estate. There is a fiduciary obligation to perform these activities so that the estate beneficiaries’ interests are safeguarded. The fiduciary has very broad powers to find and collect assets. Usually, a Last Will enumerates the authority to collect assets. However, whether there is an Executor or Administrator, the Estate laws give these powers as well. For example, Estates, Powers and Trusts Law (EPTL) Section 11-1.1, entitled “Fiduciaries’ powers” states at paragraph (b)(5)(A) that a fiduciary has the authority with respect to property “To take possession of, collect the rents from and manage the same.”

While the authority granted may be broad, it is not always easy to identify and collect a decedent’s assets. Very often a person fails to maintain organized and complete records regarding bank accounts, stock ownership and business affairs. Moreover, the decedent may have been secretive during life and did not share all of his financial information with family members or professional advisors such an attorney or an accountant. In these cases, the fiduciary has to act like a detective and investigate all possible information regarding potential estate assets. Continue reading

When a person dies intestate (without a Last Will), his estate is distributed according to the laws of intestacy. New York estate lawyers know that Estates, Powers and Trusts Law Section 4-1.1 provides the list of relatives who have priority to receive a share of the decedent’s estate. Many articles appear in the New York Probate Lawyer Blog discussing intestate inheritance issues.

At the top of the list of those entitled to inherit pursuant to EPTL 4-1.1 is a decedent’s spouse and children. However, there are circumstances where a spouse’s right might be extinguished through disqualification. Some of these situations have been discussed in earlier posts. EPTL 5-1.2 is entitled “Disqualification as surviving spouse”. Under this section a spouse may be disqualified to received a share in a number of circumstances such as intestacy and asserting a right to elect against a Will. Continue reading

The Surrogate’s Courts in New York are familiar to most persons as the Court where Wills can be probated and Executors and Administrators appointed to handle estate affairs. While it is accurate that the primary issues presented to the Court are the appointment of estate fiduciaries, there are a plethora of issues that are involved in estate administration that require Court intervention.

A New York City Estate Lawyer is familiar with the many provisions in the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act that provide for accessibility to the Surrogate to determine issues regarding estate affairs. For example, SCPA 2103 is entitled “Proceeding by fiduciary to discover property withheld or obtain information”. This provision allows a fiduciary to commence a Court proceeding against a third party to recover the decedent’s property that is being withheld from the estate.  SCPA 2105 allows a proceeding to be filed to compel a fiduciary to deliver property that is claimed by a third party. Continue reading

The Surrogate’s Courts in New York are located in the various counties.  There is a Manhattan (New York County) Surrogate’s Court, Queens County Surrogate’s Court, Kings County Surrogate’s Court and so on.  The County courts generally accept filings for estate matters that concern decedents that are domiciled in such county when they die. Surrogate’s Court Procedure Act (“SCPA”) Section 205 provides, in part, in paragraph 1 that “the proper venue for proceedings relating to such estates is the county of the decedent’s domicile at the time of his death“.  Domicile is generally the location where a person has his primary home. See SCPA Section 103(15).

In view of the above provisions, upon the death of a person who has lived for example in Queens County, the proper court to file estate proceedings would be the Queens County Surrogate’s Court.   Such proceedings may be a probate proceeding if the decedent left a Last Will or an Administration proceeding if the person died without a Will (“intestate”).  Generally, if the case is filed in the wrong county the Court will reject it. Continue reading

The New York Probate Lawyer Blog has provided numerous posts discussing the need to identify, protect and collect estate assets.  One of the fundamental obligations of an estate fiduciary such as an Executor or Administrator is to make certain that property belonging to the decedent is available for the benefit of estate beneficiaries.  As discussed in earlier posts, a decedent may have owned assets of various types such as bank accounts, real estate, stocks and bonds.  However, interests in other types of assets such as intellectual property rights, copyrights, trademarks and business interests need to be secured, as well.  There have been a few recent reports detailing the efforts made to obtain estate protection for these less common variety of property interests.

In a post by Eriq Gardner on June 2, 2014 in the HollywoodReporter.com entitled “Here’s the Lawsuit Claiming Led Zeppelin Stole ‘Stairway to Heaven’, it is reported that heirs of a guitarist and songwriter have filed a copyright infringement claim against the Led Zeppelin rock group. The lawsuit, which dates back to events occurring 43 years ago, asserts that the Led Zeppelin group wrongfully used guitar music previously created by the claimant to write the iconic “Stairway to Heaven”.

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In New York it is very common that a person will own a cooperative or condominium apartment. The rights to the apartment may be part of a decedent’s administration estate where the decedent was the sole owner of the unit. In cases where the unit is held jointly, the ownership interest would pass automatically to the joint owner.

When a cooperative or condominium unit becomes a part of the estate, the Executor or Administrator is responsible for maintaining and disposing of the unit. Thus, monthly common charges and maintenance must be paid. Additionally, the unit may be subject to other issues. For example, the actor Philip Seymour Hoffman recently died in February 2014. At the time of his death the actor owned a condominium unit in the West Village. As reported at NYdailynews.com in an article by Barbara Ross on June 5, 2014, another unit owner sued the late actor’s estate alleging that a flood from the actor’s apartment caused extensive damage to their unit. Continue reading

Following the death of a decedent, proceedings in the Surrogate’s Court are often begun for the appointment of an Executor or Administrator.  As discussed in many past posts in the New York Probate Lawyer Blog, an Executor is appointed when a Will is admitted to probate and letters testamentary are issued.  If a person dies without a Will, he is said to have died intestate and the Court then issues letters of administration to the administrator.  The administrator is determined according to statutory priority of kinship pursuant to Surrogate’s Court Procedure Act (SCPA) 1001 entitled “Order of priority for granting letters of administration”.

New York estate lawyers are aware that an estate fiduciary has many responsibilities including locating and collecting estate assets.  Sometimes it may occur that an asset belonging to the estate is being withheld or has been wrongfully taken by a third party.  There are provisions in the SCPA that can be utilized by a fiduciary to discover and recover these assets from the third party. Continue reading