Articles Posted in New York Probate Court

shutterstock_204507106-300x254When an Executor or Administrator is appointed by the Surrogate’s Court, the job of estate settlement begins. One of the first orders of business is identifying and collecting the assets of the estate.

The New York Probate Lawyer Blog has discussed the issue of asset protection and collection on many occasions. One of the primary sources of information in this regard is the financial records maintained by the decedent. Typically, the decedent will receive bank statements, brokerage statements and other correspondence that reflect values and other ownership information. Another excellent place to look for evidence of estate assets is the decedent’s prior income tax returns. These documents may contain the names of banks or other sources of dividend or interest income. The tax returns may show ownership rights in real estate, corporations, limited liability companies or partnerships.

Earlier articles in this Blog have referred to Surrogate’s Court Procedure Act Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information.” This statute provides the Administrator or Executor with a legal procedure to obtain verification from third parties who may be withholding or otherwise refusing to give up information concerning possible assets that were owned by a decedent. SCPA 2103 requires that a petition be filed with the Surrogate’s Court and a hearing be held before the Court to obtain the requested relief. While it may take time and effort to commence estate litigation and prosecute these proceedings, there can be very positive results for an estate if property is located and recovered. As an estate lawyer in New York City, I have been involved in numerous SCPA 2103 cases. The Surrogate’s Courts throughout New York are very familiar with these matters and recognize their importance for the successful settlement of an estate.

The Surrogate’s Courts in New York are located in the various counties. Thus, there is a Manhattan Surrogate’s Court, a Queens Surrogate’s Court and so on. Typically, the county where a decedent had his domicile (i.e., primary home) will be the location where the estate proceedings are to be filed. For example, if a person had their primary home in Brooklyn, the proceedings concerning estate administration or the probate of a Will is to be in Kings County Surrogate’s Court.

Estate attorneys are familiar with the procedures and issues regarding estate settlement. The Court is accessible to resolve many of the issues relating to a decedent. Controversies arise in estate litigation concerning the decedent’s interests in business such as small corporations, partnerships and limited liability companies. The Surrogate generally is the judge who can resolve these disputes since their outcome relates to and affects the decedent’s estate. Additionally, a person may die and be subject to various claims of creditors. The Court can resolve controversies regarding these claims in the estate accounting proceeding or in separate proceedings.   Article 18 of the Surrogate’s Court Procedure Act (“SCPA”) is entitled “Claims; Payment of Debts and Funeral Expenses.” The sections in Article 18 deal with the presentation and determination of the validity of claims against a decedent. Continue reading

The administration of a decedent’s estate is primarily under the authority of the New York Surrogate’s Court. These courts also supervise testamentary trusts and, in many cases, inter vivos trusts, as well. A testamentary trust is a trust that is created by a decedent’s Last Will.

As can be imagined, there are many diverse issues that a decedent’s estate may be involved with. For example, the decedent may have been the owner of a business. There can be issues and disputes concerning the business operations that a rise after death.

Additionally, matters concerning the determination and collection of assets and controversies regarding a decedent’s debts and obligations are all part of the multitude of issues that the Surrogate’s Court can be called upon to determine.

The jurisdiction of the Court to review issues that affect an estate is very broad and sometimes it is surprising that the Surrogate’s Court has authority to rule on a particular controversy. One such area that falls into this category is summary eviction proceedings. In most localities in New York, there are specifically designated Courts in which landlord-tenant matters and evictions are heard. In New York City, each of the counties, such as Queens and Brooklyn, have landlord-tenant parts in the New York City Civil Court.

It is very common that when a person dies owning real estate such property is occupied by third parties. The occupant may be an unrelated tenant or even a family member who was living at the property with the decedent or otherwise with the decedent’s consent. There are many cases where a decedent may have allowed a relative to live in a house for decades. However, after a person dies, if the real estate is titled in the decedent’s name alone, the property may become part of the decedent’s estate and its sale may be necessary to pay estate bills, a mortgage or to distribute the property value amongst numerous estate beneficiaries.

Problems arise when the occupant refuses to vacate the property. The fiduciary, who has the responsibility to manage the property, is then faced with the task of having to evict the occupant so that estate or trust affairs can be taken care of. In these cases the first thought might be to file a petition in the local landlord-tenant Court. However, the Surrogate’s Courts have acknowledged that the eviction proceeding can be commenced in such Court since the matter affects the administration of the estate or trust affairs.

A recent case entitled Matter of Katherine Boyer decided by Surrogate James Pagones (Surrogate’s Court, Dutchess County) on June 7, 2013 and reported in the New York Law Journal on June 14, 2013, addressed this very issue. In Boyer, a property owned by the decedent was transferred under the decedent’s Last Will to the trustees of a testamentary trust. The trustees brought a proceeding in the Surrogate’s Court seeking the eviction of the occupant who was living in the property. The Court found that the property was owned by the trust and also issued a warrant of eviction against the occupant.

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A New York Executor, Administrator or Trustee has many powers and obligations. As a fiduciary, such appointments require that a full record and account of activities be maintained so that an accounting can be provided to the estate or trust beneficiaries.

It is not uncommon for a beneficiary to complain that he did not receive either an accounting from a fiduciary or the full share of assets that he feels he was entitled to. The New York Probate Lawyer Blog has discussed in previous posts that the Surrogate’s Court Procedure Act (“SCPA”) provides a remedy when a beneficiary asserts that an accounting has not been provided. SCPA 2205 sets forth that the Court may issue an order that requires a fiduciary to file an account. Typically, the aggrieved beneficiary will prepare and file a Petition with the Court and a Citation is issued directing the fiduciary to appear in Court and state why he should not be required to file the account. Since the preparation of an accounting is fundamental to the completion of the fiduciary’s job, the Surrogate will almost always require the filing. If the fiduciary fails to appear on the Court date or does not comply with the Order to file, the Court may suspend or remove the fiduciary.

A New York Estate Attorney will usually represent an Executor, Administrator or Trustee in an accounting proceeding. Very often, the services of a fiduciary accountant are used to prepare the detailed schedules that are part of the papers to be given to the beneficiary and the Court. The schedules must be in accordance with the requirements of the estate rules. SCPA contains an Official Form 12 which is an Account of Executors and Administrators. Official Form 13 is an Account for Trustees.

While the Surrogate usually directs a court filing of a formal accounting, the Court appears to have some leeway in its determination. A recent decision by New York Surrogate Nora Anderson entitled Estate of Jean Kennedy decided on June 12, 2013 and reported in the New York Law Journal on June 21, 2013 is instructive. In Kennedy, Surrogate Anderson declined to require an Executor/Trustee to file a formal judicial accounting. The Judge ruled that such filing would not be in the best interest of the estate at the present time since the fiduciary had provided an informal accounting, was willing to provide the beneficiary with all requested financial information and it appeared that the beneficiary’s interests had already been satisfied with other assets.

I have found that a claim of breach of fiduciary duties and the failure to account to a beneficiary are very common aspect of Estate Litigation in the Surrogate’s Courts. While the New York Estate laws are very helpful and protective of the interests of beneficiaries, the Kennedy case shows that judicial decisions often reflect the needs of the particular facts and circumstances of the case.

Therefore, consultation with a New York Trusts and Estate Lawyer regarding fiduciary breaches and accounting requirements is important in order to present a matter to the Court in an appropriate fashion. As they say, one size does not fit all.

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There are two fundamental procedural avenues that are followed when initiating proceedings in the Surrogate’s Court to administer a decedent’s estate. If the person died testate (having left a Last Will), the proceedings concern the Probate of the purported Will. If the person died intestate (without a Will), the proceedings are determined to be an Administration of the estate.

It is fairly common that a fiduciary or beneficiary of an estate may receive information that the fiduciary must be bonded or receive a bond in order to complete his appointment by the Surrogate’s. Court. The bonding requirement of an Executor (when a Will is probated) or an Administrator (in an intestate estate) is not as mysterious as it may sound.

A bond is essentially an insurance policy issued by a surety company that provides security for the estate assets. If the fiduciary misappropriates or improperly takes estate assets, the bonding company may be required to reimburse the estate for the loss and, in turn, try to recover the lost assets from the fiduciary.

In view of the financial risk that a surety incurs by issuing a bond to a fiduciary, the surety company will require that the fiduciary have a solid financial and credit background. I have been involved in a number of matters where a person was approved by the Surrogate’s Court to act as an Executor or Administrator only to be rejected by the bonding company. If the prospective fiduciary cannot obtain the bond required by the Court, he most likely would need to forfeit his appointment in favor or an alternate fiduciary who can satisfy the bonding company.

The amount of the bond required by the Court depends upon many factors. Primarily, the value of the decedent’s estate is the starting point. The greater the value of the assets, the larger the required bond. The bonding company will charge the estate an annual premium for the cost of the bond. The larger the amount of the bond, the larger the premium cost.

It is not uncommon to see standard language in a Last Will to the effect that the requirement of obtaining a bond by the Executor is waived. In most probate matters, the Court does not require the posting of a bond. However, there are a number of situations where even in probate proceedings the Court may require that a bond be filed with the Court as a condition to the fiduciary’s appointment. For example, if the Court is asked to issue Preliminary Letters Testamentary, Surrogate’s Court Procedure Act (SCPA) Section 1412(5) gives the Court discretion to require a bond.

The appointment of an Administrator in an intestate estate usually requires the filing of a bond (SCPA 805), although the filing can sometimes be avoided if all of the estate beneficiaries agree that the filing be dispensed with.

After Estate Settlement has been completed, the fiduciary is required to make a final distribution of estate assets to estate beneficiaries. When all beneficiaries have signed a Release Form or the Court has issued a Decree settling the fiduciary’s Accounting, the bond will be terminated.

I have represented many fiduciaries who have been required by the Court to obtain a Surety Bond. New York Estate Attorneys typically contact various agencies that act as brokers in connection with the Bond Application Process. Since it is not always easy for persons to qualify for a bond, it is a good idea to speak with a bonding company before papers or Petitions are submitted for Probate or Intestate Administration to get a preliminary determination as to whether the person applying to be appointed as a fiduciary can qualify for a bond required by the Court. I work closely with my clients in all aspects of estate administration and assist them with their bond applications.

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The execution or signing of a New York Last Will is subject to very strict statutory requirements. While the Will signing ceremony may seem somewhat formal and old-fashioned the requirements of the statutes must be adhered to for the Will to be admitted to probate or validated.

As previously reviewed in earlier posts in the New York Probate Lawyer Blog, Estates, Powers and Trusts Law (EPTL) Section 3-2.1 provides the “formal requirements” for the “Execution and attestation of wills”. A summary of the requirements includes the following:

(i) The Will must be signed at the end.
(ii) No effect is given to any matter which is after the signature or added after the
Will is executed.
(iii) The Will should be signed in the presence of the attesting witnesses.
(iv) The testator should declare to the witnesses that the paper is his Will.
(v) There should be at least two (2) witnesses to the Will.

Sometimes obtaining the mandatory two (2) witnesses is not an easy task. If the Will is signed in an attorney’s office it is typically easy for the supervising attorney to obtain independent attorneys or office staff to act as witnesses. However, sometimes due to inconvenience or a testator’s inability to travel, the Will execution ceremony is performed in a residence or other location. In such situations, controlling the execution ceremony so that it complies with the statutory requirements is more difficult.

Attention is called also to EPTL Section 3-3.2 entitled “Competence of attesting witness who is beneficiary; application to nuncupative Will.” Essentially, this statute provides, in part, that where an attesting witness receives a benefit under the Will, such disposition is to be deemed void unless there are at least two other witnesses who do not receive a beneficial disposition. Thus, if the benefiting witness’s testimony is needed to validate the Will, the disposition is voided and lost.

A recent case decided by Surrogate John M. Czygier (Suffolk County Surrogate’s Court) on December 14, 2012 and reported in the NYLJ on December 31, 2012 cited as “Probate Proceeding 2012-337”, is an example of a problem presented by a witness having a beneficial interest in a Will. In this case, the Will had a provision whereby a bequest of $100,000 was made to the “Peconic Landing Employees Appreciation Fund.” All three attesting witnesses were employees of Peconic Landing and the Court found that they would benefit from the bequest to the Fund. Therefore, the Surrogate determined that the witnesses received a “beneficial disposition’ and voided the $100,000 bequest to the Fund.

As can be seen from the above decision it is important that the preparation and execution of a Last Will be done with an eye towards potential problems in probating the Will. New York Estates Lawyers typically are familiar with the statutory requirements for Will executions and probate and work closely with their clients to achieve their estate planning goals.

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The New York Probate Lawyer Blog has discussed many of the proceedings that can arise in the Surrogate’s Court such as the Manhattan Surrogate’s Court and Nassau Surrogate’s Court. Each of the counties in New York State has its own Surrogate’s Court.

The various proceedings include Probate Proceedings, Intestate Administration Proceedings, Accounting Proceedings, Kinship Proceedings, and various other Miscellaneous Proceedings such as proceedings to revoke the appointment of a fiduciary.

In order for the Court to determine the issues in the cases that are filed, the Court must be certain that all parties interested in the case have received a proper notice and have had an opportunity to appear before the Court and protect their interests. Very often, the Notice that a party receives is a Citation or an Order and Show Cause. These Notices must be properly served on a party and provide information as to the date, time and place of the Court hearing.

It is not uncommon in many cases that one of the parties may not be legally capable to protect their interests or appear in Court. An infant (i.e., someone under age 18) or a person who is incapacitated cannot act for his or her own welfare. When these situations arise, there are a number of avenues that can be followed so that the incompetent party can participate in the Court proceeding.

With regard to an infant, he or she may appear by a Court appointed guardian of his or her property. See Surrogate’s Court Procedure Act (SCPA) Section 402. This section also provides that an incapacitated person may appear by a Court appointed guardian. Article 81 of the Mental Hygiene Law provides an extensive procedure for the appointment of a Guardian of the person and property for an incapacitated person.

When an infant or other disabled person has not had a Guardian appointed to represent them or when the Court feels that such Guardian cannot adequately represent them, the Court can appoint a Guardian ad Litem. SCPA 403 provides for the appointment of a Guardian ad Litem selected by the Court but also provides a procedure whereby the Guardian ad Litem can be nominated by an infant over 14 years old or his parent or guardian. Of course, such nomination is subject to approval and appointment by the Court.

In a recent case entitled a Will of Nanaline Duke, decided by Manhattan Surrogate Nora Anderson on November 28, 2012 and reported in the New York Law Journal on December 10, 2012, the Court allowed the family members to nominate the Guardian ad Litem.

Typically, the Guardian ad Litem will act as the representative of the person under disability and protect his or her interest in the Court case. SCPA 405 provides the procedure for the Guardian ad Litem to be paid for services rendered.

Estate Litigation involves many complex issues and procedures. As a New York Estate Lawyer I have represented many clients where the Court has appointed a Guardian ad Litem to represent a party’s interest. I have also acted as the attorney for Guardians who are acting on behalf of incapacitated individuals. For example, in a situation where a decedent dies intestate and his or her sole heir is incapacitated, I have petitioned the Court to appoint the sole heir as an Article 81 Guardian who then had the authority to act as the Administrator of the decedent’s estate.

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New York Estate Administration Attorneys are often confronted with questions as to whether a decedent was married at the time of death. The issue of marital status is important since a surviving spouse is a distributee (next of kin) under New York Estate Laws and is afforded certain rights in a decedent’s estate. These rights have been discussed in previous posts in the New York Probate Lawyer Blog including a spousal right of election (Estates, Powers and Trusts Law [EPTL] Section 5-1.1 A) and a spousal right to an intestate share of the estate (EPTL Section 4-1.1).

The determination as to a person being married at the time of death involves investigation as to whether there was a valid marriage and, if so, was the marriage terminated by a valid divorce.

New York Estate Litigation may be necessary to provide an answer to these inquiries. As a New York Trust and Estate Lawyer, I often need to investigate such issues by obtaining and examining relevant documents such as marriage certificates and divorce settlements and divorce decrees to advise clients as to the decedent’s marital status so that proper estate settlement can occur.

A recent case in the Richmond County Surrogate’s Court provides an example of the complicated facts that can be involved in determining marital status. In Estate of Daniel Kelly, decided by Surrogate Robert Gigante on June 18, 2012 and reported in the New York Law Journal on June 29, 2012, the decedent and his spouse entered into a divorce Separation and Settlement Agreement on October 16, 2008. On that same date they appeared in Court and the divorce judge granted the divorce. However, the decedent died on January 7, 2009 and the actual divorce judgment was not signed until March 25, 2009 relating back to the October 16, 2008 Court divorce decision. Based upon the above events, the Surrogate in Kelly found that the decedent was divorced at the time of his death.

As is common in many divorce situations, divorcing parties provide in their settlement or separation Agreements that each waives or relinquishes rights in the others’ assets and property including insurance policies and retirement benefits. Problems arise where, despite the waiver of rights, the name of the divorced spouse is not changed or deleted as a beneficiary on the insurance policy or retirement account. Surrogate’s Court litigation then becomes necessary to determine the rightful payee of the decedent’s benefits.

In Kelly, the decedent’s former spouse remained named as a beneficiary of his federal retirement benefits. However, the parties’ Separation and Settlement Agreement specifically provided that the divorced spouse waived all rights to these benefits. The Court, after reviewing the parties’ divorce agreement and their apparent intentions, determined that the surviving divorced spouse waived all interest in these benefits and that the retirement funds should be paid to the decedent’s estate.

Estate Administration can be very complex and involve the review and analysis of many types of papers concerning the decedent’s affairs such as deeds, business agreements and divorce papers. All of these documents can impact estate settlement, estate taxes and distribution of assets to estate beneficiaries. I have assisted executors and administrators for over 30 years with all aspects of estate administration and the review of various documents required for successful and efficient estate processing.

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New York estate settlement is not an easy task. While estate lawyers assist their clients with probating New York Wills as well as finding and collecting estate assets, paying estate taxes and other debts and obligations, these procedures can be extremely complex.

The ownership of estate assets such as real estate or bank accounts is often the subject of estate litigation. When drafting a Last Will or beginning estate planning, it is fundamentally important to obtain all information regarding the ownership of the testator’s assets. Without full and complete information, the estate plan and Will and Trust papers that are prepared can turn a simple estate into one filled with litigation in the Surrogate’s Courts.

Real estate ownership typically is the center of many controversies because of its high value and the different ways title can be owned. For example, real estate that is jointly owned with rights of survivorship or by spouses, known as tenants by the entirety, passes automatically from one owner to the other upon death. However, realty that is owned as tenants in common is basically owned in separate shares by the tenant in common owners and does not automatically pass to the other owners upon death. The decedent’s estate is entitled to receive the interest of the deceased tenant in common owner.

After a person dies, it is often startling to discover that real estate that had been assumed to be owned as, tenants in common, was really owned as a joint tenancy and the decedent’s estate and beneficiaries receive no interest in the property which passes automatically to the joint owner. Moreover, the ownership of property can be even more complicated based upon other variables such as real estate contracts, divorces or marriage separations and agreements that relate to the real estate ownership.

Such was the case in The Matter of Scola, which was decided by Surrogate Peter J. Kelly, Queens Surrogate’s Court, on May 9, 2012 and reported in the New York Law Journal on May 18, 2012. In Scola, the decedent and his wife had owned a residence as tenants by the entirety. The parties had signed a Separation Agreement but were still married at the time of the husband’s death. The Court found that the Separation Agreement did not provide an adequate expression of intent to prevent the entire property from passing automatically to the wife upon the husband’s death.

Given an opportunity to fully analyze and understand the results that would transpire upon the death of either party, perhaps the husband and wife in Scola would have changed the title on the property prior to the husband’s death to prevent this automatic transfer.

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A New York Guardianship Lawyer can advise a client with regard to the Guardian’s duties to protect the assets of the incapacitated person. Mental Hygiene Law (MHL) Section 81.21 is entitled “Powers of guardian; property management” and provides the various property management powers that are given to the Guardian. These powers are to be used to collect, preserve and apply the Guardianship property for the benefit of the person who is incapacitated.

The Mental Hygiene Law provides that the Guardian must file an Annual Report with the Court (MHL Section 81.31). The filing of the Report provides a means by which the Court can review whether the Guardian is acting in a proper manner on a year to year basis. These Annual Reports are typically reviewed by a Court appointed Court Examiner who provides a report to the Judge who is supervising the Guardianship case. The Judge then reviews the report and if the account is satisfactory, signs an Order approving the Report.

The Guardianship accounting process is somewhat different than the Accounting Proceedings that occur in the Surrogate’s Court regarding a decedent’s estate. It is very common that when settling an estate the final Estate Accounting is approved informally by the interested parties. In other words, the parties simply review the Executor’s Accounting or the Administrator’s Accounting and sign a Release form. There are no formal proceedings or accounting that is filed with the Surrogate’s Court. The process of probating a New York Will and settling a New York Estate does not require that an annual or a final account be approved by the Court. However, formal accounting proceedings requiring the Surrogate’s Court approval are sometimes required. In a Guardianship matter such as a Manhattan Guardianship, Nassau Guardianship, Queens Guardianship or other Court proceedings, annual and final Accountings must be filed and approved by the Court.

Probate and Guardianship Attorneys in New York can assist their clients when preparing the accounts that are needed to report the actions taken by them as fiduciaries. The best advise is to maintain complete records and copies of all papers showing all the financial transactions that were entered into. Also, hiring a fiduciary accountant can simplify the preparation of the accounting schedules that are required by the Court for reporting all information. Acting as a fiduciary such as a Guardian, Executor, Administrator or Trustee involves accepting the responsibility to protect and manage someone else’s assets. Proper guidance from a good Estate lawyer or Guardianship lawyer is essential to performing fiduciary duties properly and having the Court approve of the actions taken. Legal representation and diligence regarding property management is especially important where family members are fighting amongst themselves concerning the affairs of the person who is incapacitated. As recently reported in the Beverly Hills Courier on May 2, 2012, there is an ongoing dispute between Zsa Zsa Gabor’s husband and daughter concerning the management of her affairs. Although the article reports that the parties are attempting to settle the matter, each side will need to have a complete record of financial transactions concerning Ms. Gabor in order to fully access the situation and to present their case to the Court, if necessary.

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