Last Will

March 14, 2018

Lessons To Learn About Ineffective New York Will Provisions

Preparing an estate plan is important. When a person dies without a Will, he has forfeited his opportunity to create a plan that actually reflects his intentions. The New York Probate Lawyer Blog has published many articles talking about intestate estates (where there is no Will). In these situations Estates, Powers and Trusts Law (EPTL) Section 4-1.1, entitled “Descent and distribution of a decedent’s estate”, controls the designation of the persons who inherit the estate.

You need to prepare an estate plan. This plan can include a Last Will and Living Trust. However, it is equally important that extreme care and attention be given to the preparation and execution of these documents. An attorney, such as a Manhattan estate attorney or Brooklyn estate attorney, can assist you with the details and provisions that you provide in the documents. If the terms and language in the Will are confusing or not effective, your intentions will not be carried out. Continue reading

November 22, 2017

A New York Will Can Be Admitted to Probate Where the Original Is Lost

by Jules M. Haas

Wills in New York are required to be executed in accordance with the statutory guidelines. Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”, sets forth very definite rules for Will authenticity. For example, a Will generally needs to be in writing and signed by the testator at the end of the document. There also must be two witnesses to the execution. The New York Probate Lawyer Blog has published many articles discussing the rules and other issues concerning the making and signing of Wills.

The Surrogate’s Court strictly adheres to the rules regarding Will execution. The Court wants to follow the statutory directions and be certain that the Will that is probated is authentic. There are times when the original of a decedent’s Will cannot be located. This situation was discussed in a recent case decided by Manhattan Surrogate Nora Anderson on December 1, 2017 entitled Matter of Raleigh. In Raleigh the decedent signed his Will in an attorneys office in New Jersey. The original Will was then mailed to the attorney’s office in New York where the attorney put the Will in the client’s file and stored it with a storage company. Continue reading

October 25, 2017

New York Multiple Wills Can Present Probate Problems

by Jules M. Haas

Estate planning in New York involves the preparation of a number of documents including a Last Will and Testament. It is not unusual that during the course of a lifetime a person prepares and executes a series of Wills.

It is a common practice that a Will should be updated periodically. There are many reasons for such updates. It may be that early versions of a Will contain trust and guardianship provisions for a person’s minor children. Once the children have grown older there would no need for these provisions. In this regard, a person’s testamentary plan and intentions may change over time. A testator can change the dispositive provision of his Will as many times as desired. Sometimes the individuals named as beneficiaries may predecease the testator or need to be eliminated due to personal preferences. Continue reading

August 9, 2017

A New York Will May Be Revoked If The Original Is Missing

by Jules M. Haas

Estate planning is an important part of overall financial management. The preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust can provide a clear expression of a person’s desires regarding property disposition and personal affairs.

Once a Last Will and other documents are prepared and executed, it is important to safeguard them. Such papers can be maintained in a secure filing cabinet or personal safe. Sometimes these papers are held in the office of an attorney or placed into a safe-deposit box. While a safe deposit box may limit or inhibit their accessibility in situations of death or disability, the papers are secure. Nevertheless, alternative methods of storing estate planning papers may be more efficient for having them accessible when needed. Continue reading

July 5, 2017

A New York Will Needs To Be An Original For Probate

by Jules M. Haas

Estate Litigation in the Surrogate’s Court often involves issues that effect many decedent’s estates. These problems occur over and over again. One such problem area concerns the attempt to probate a Will where the original document cannot be located.

When a person signs a Last Will great consideration and care should be given to storing the Will in a safe location. Sometimes the Will is maintained at the office of the estate attorney who prepared the Will and supervised its execution. More often, the testator takes the Will home and keeps it with other papers. On occasion, a Will is kept in a safe deposit box at a bank. Problems arise when a person dies and the original Will cannot be located. While a copy of the Will may be available, there are strict rules regarding the probate of a copy. The New York Probate Lawyer Blog has discussed this issue in earlier posts. Continue reading

October 26, 2016

New York Wills Need to Be Properly Prepared and Signed

by Jules M. Haas

The preparation and signing of Wills in New York is an important part of the estate planning process. Creating documents such as a Last Will, Living Will, Health Care Proxy and Living Trust is an important first step in expressing a persons intentions for property disposition and personal care management.

As part of the process of implementing these important documents, it is essential to obtain proper guidance and supervision regarding the preparation and execution of such papers. The New York Probate Lawyer Blog has posted many articles describing cases where Wills have been the subject of Will Contests, especially where questions arise as to the manner in which the Will signing took place. Also, there are many instances where Estate Litigation has occurred due to provisions or clauses in Trusts or Wills that are confusing or ambiguous. Obviously, seeking the assistance of an Estate Lawyer to help with the drafting and preparation of planning papers can diminish the possibility of a lawsuit by a disgruntled relative who has been disinherited. Also, following the statutory mandates for Will execution insures that the intentions of a testator can be fulfilled and that a validly prepared Will can be admitted to probate. Continue reading

January 22, 2014

New York Estate Statutes Help To Determine the Beneficiaries of an Estate

by Jules M. Haas

The New York Estates, Powers and Trusts Law (“EPTL”) along with the Surrogate’s Court Procedure Act (“SCPA”) contain the statutory rules and procedures regarding decedent’s estates. EPTL Section 3-2.1 entitled “Execution and Attestation of Wills; formal requirements” has been discussed in previous blog posts. This section sets forth the rules that control the valid signing of a Last Will. The section provides, for example, that the Will must be signed at the end of the document by the testator. It also states that anything that is placed on the document following the signature as well as any matter that is added to the Will preceding the signature but after the Will is signed, shall be invalid.

New York estate lawyers are familiar with the proper preparation and execution of Wills in order to comply with statutory rules. However, there are occasions when documents appear to lack compliance with the statute and require review by the Surrogate’s Court. In Estate of Thomas a Will was filed for probate that contained numerous handwritten alterations to bequests set forth in the paper. In a decision dated January 7, 2014 and reported in the New York Law Journal, Bronx Surrogate Nelida Malave-Gonzalez reviewed the document and the evidence presented to the Court. The evidence included an affidavit from the attorney who prepared the Will which stated that when the Will was signed it did not contain the handwritten changes that were later found on the document. Based upon his proof and other information, the Surrogate found that the handwritten changes did not comply with the requirements of EPTL 3-2.1 and thus were not valid. The Will was admitted to probate and the alterations were ignored and did not change the original provisions of the Will.

In the event an individual wants to change or amend their Will there are two ways to proceed. A Codicil can be prepared which only revises the provisions that are sought to be amended. Instead of a Codicil, the entire Will can be redone in which the only change is the desired modification. Both the Codicil and the new Will need to be executed in accordance with the statutory requirements. The preferred method is to revise and sign a new Will. This tends to eliminate both any confusion and the need to keep track of a number of separately signed papers.

It is always important to have a Will and other documents such as a Health Care Proxy, Power of Attorney and Living Will properly executed. Additionally, in the event a creator wants to amend or change any of the provisions in these papers, it is equally important to do so in a manner that is proper so that the changes can become effective. All testamentary and advance directive papers should be prepared and signed correctly to avoid estate litigation such as Will Contests and to allow easy estate settlement.

January 8, 2014

New York Last Will Should Provide for All Contingent Dispositions

by Jules M. Haas

The New York Probate Lawyer Blog has had numerous posts regarding the benefits of estate planning. When a person dies without a Last Will his estate is subject to the laws of intestacy and is distributed to distributees or heirs at law according to statutory priority. When an estate is planned by the drafting and execution of a Last Will, Living Will, Health Care Proxy and Power of Attorney, a person has the opportunity to specifically designate the individuals that he intends to benefit from his estate and who will make decisions regarding his affairs.

In the case of a Will, it is essential to clearly name and identify the intended beneficiaries such as “my son, John Smith” or “my friend, Mary Jones.” It is equally important that a Will and other documents specify contingent beneficiaries and alternative fiduciaries. Since a Will may be signed many years, even decades, before a person dies, these alternative provisions are likely to become the effective directions at the time of death. Therefore, the naming of substitute beneficiaries should not just be an afterthought but must be fully considered and carefully drafted as part of the Will Planning process. Failure to do so may disrupt estate settlement and result in the failure of the testator’s desires being expressed and complied with.

A recent example of the problems caused by not properly providing for contingencies in a Will is demonstrated in the case of Estate of Beatrice Thompson. In a decision dated December 23, 2013 and reported in the New York Law Journal, Richmond County Surrogate Robert Gigante was presented with motions for summary judgment in a construction proceeding. These types of proceedings are commenced when the Court’s assistance is needed to determine the meaning or effect of unclear or ambiguous terms in a Will. It appears that the decedent wife had written a Will that left her entire estate to her husband. However, the husband pre-deceased the decedent and the Will failed to provide for a disposition of the estate in the event of the husband’s death. The Court denied the motions since it found that questions of fact existed regarding the decedent’s disposition of the estate residue in view of the lack of any specific language disposing of the estate property.

Thompson is a good demonstration of the need for New York Will lawyers to assist their clients and provide documents that explicitly identify contingent beneficiaries. It is equally essential that all Trust and Wills have detailed provisions to cover all assets and dispositions. In a recent case the late Charlie’s Angels star, Farrah Fawcett, left all her artwork to her alma mater. As reported by the Associated Press on December 19, 2013 at HollywoodReporter.com, at the time of her death an Andy Warhol portrait was located in her condominium. However, Ms. Fawcett’s companion, film star Ryan O’Neal, claimed that the portrait really belonged to him. After a trial a jury decided in O’Neal’s favor. The lesson to be learned is that specifying items in a Will or Trust that may belong to others can avoid long and costly Court battles.

November 6, 2013

New York Last Wills Are Required to Follow Statutory Guidelines

by Jules M. Haas

The New York Probate Lawyer Blog has discussed in earlier posts that a New York Last Will must comply with statutory requirements. Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides many of the rules regarding the signing and form of a Will.

For example, the statute provides that all Wills must be in writing and signed at the end of the document. Also, paragraph (a)(1)(B) states that anything that is added above a testator’s signature after a Will is executed is not to be given any effect. Paragraph (a)(4) requires that there shall be at least two (2) witnesses to the Will and paragraph (a)(3) sets forth that the testator must declare to the witnesses that the paper being signed is his Will.

While this statute and the many court cases interpreting the legal requirements of a Will and its execution may seem very formalistic, the underlying rationale is to insure that a testator’s last wishes and intentions are reflected in a paper that has a high probability of validity. The strict requirements surrounding the form and signing of Last Wills protect both the interests of the testator and the beneficiaries named in the document.

The legal requirements, however, do not prevent the many estate litigation controversies that frequently occur. Will contests are fairly common. In many of these contested Will cases, even though the document may appear to have been properly executed with sufficient witnesses, an objectant may claim that the testator did not have the capacity to make a valid Will, or that the testator was unduly influenced or coerced into signing the Will. These matters are typically dealt with in probate proceedings in the New York Surrogate’s Courts. Estate attorneys generally represent the parties involved such as the person petitioning for probate who is usually the named executor and the potential or actual Will objectants.

The formality of a written document that is witnessed by at least two people creates certainty for the disposition of assets of a decedent. An interesting case was recently reported by Eric Frazier in the Charlotte Observer on October 22, 2013. In an article entitled “Son of late developer Henry Faison suing his firm over Will“, it was reported that Henry Faison, a Charlotte, North Carolina real estate developer, had died just before he was to sign a new Will. Mr. Faison’s new estate plan would have left most of his multi-million dollar estate to a charitable foundation instead of to his company. The decedent’s two sons commenced a lawsuit to try and enforce the terms of the new Will which was not signed before Mr. Faison’s demise.

Mr. Faison’s situation is not uncommon. However, despite circumstances that may indicate that Mr. Faison was intending to change his estate plan, since there is no actual signed and witnessed paper to rely on, it can only be speculated as to whether the decedent may have had a last minute change of heart as to the disposition of his estate. It will be interesting to see how the Courts decide this case and whether any validity is given to an unsigned document.

Having a duly executed Will, Living Will, Health Care Proxy and Power of Attorney is important to preserve the creator’s intentions and eliminate any guesswork and, ultimately, estate settlement litigation, that might ensue in the absence of such documents.

July 24, 2013

New York Estate Planning Documents Prevent Confusion Concerning Transfer of Assets

by Jules M. Haas

The New York Probate Lawyer Blog has posted many articles concerning the need for thoughtful and specific estate planning. The many documents that can be used for advanced directives and post-death plans include a Living Trust, Health Care Proxy, Last Will, Living Will and Power of Attorney.

The failure of a person to provide any documented directions or intentions can result in the disposition of assets to unintended beneficiaries through intestacy and disputes regarding a person’s care and property management in the case of incapacity. Even when estate planning documents are put into place, Will provisions that are ambiguous or confusing can result in estate litigation in the form of a Will construction proceeding.

In addition, there are many instances where, despite the preparation and execution of planning documents, disgruntled heirs, relatives and other individuals may claim that the decedent had promised or agreed to provide for them notwithstanding the absence of such provisions in a Will or a Trust. An interesting example of such a situation was presented to the Nassau Surrogate’s Court in Will of Irving Lublin , decided on June 26, 2013 and reported in the New York Law Journal on July 22, 2013. In Lublin Nassau Surrogate Edward McCarty III was presented with a Last Will that left the decedent’s entire estate to the decedent’s wife and son. The decedent’s daughter commenced a lawsuit claiming that her grandfather had an oral agreement with the decedent by which the grandfather agreed to transfer the family business to the decedent and the decedent’s wife. In return the decedent allegedly agreed that he would care for the aggrieved daughter and ensure that she received her share of the business. The daughter now claimed that the business was wrongfully transferred to the decedent’s son.

After reviewing the evidence the Court determined that the alleged oral agreement was too vague to be enforceable. The Court also refused to impose a constructive trust due to the lack of specificity regarding the agreement.

Lublin presents an example of a common situation where individuals have an expectation based upon lifetime promises or understandings with a decedent, and end up being disappointed when those expectations are not adequately expressed in valid and enforceable documents. From an estate planning point of view, if the creator of a Trust or Will desires to benefit a person with a bequest or other property disposition, the Trust or Will should contain very specific provisions regarding the proposed transfer. Similarly, it is always best for a person not to state or infer promises that are not intended to be memorialized in an enforceable document. Such pronouncements can only create expectations for individuals who end up being hurt or dissatisfied upon learning that there have been no written provisions made for their benefit. These circumstances invariably lead to litigation in an estate and unnecessary complications for estate administration.