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nycSurrogatesThe preparation and execution of estate planning documents typically occurs in the State where a person maintains their primary home.  Such location is referred to as a person’s domicile.  Domicile is distinguishable from mere residence.  Someone can have multiple residences, but can have only one domicile.

Estate planning papers can include a Last Will and Testament and a living or revocable trust.  Other documents, such as advance directives like Health Care Proxies and Powers of Attorney may also be created.

It is not unusual for a person to prepare various papers in an estate plan and then move their home to another State or even another country.  Nowadays, after the pandemic and the advent of virtual employment, a person’s domicile or permanent home may change over time.  In situations where there has been a change of domicile, the issue may arise as to the validity of a Will or Trust which was prepared and executed in another state.  It is quite common to see a Will or Trust which needs to be presented to a New York Court which was prepared and signed in another State.  Often these documents, particularly a Trust, contain language which states that the document is to be interpreted and controlled by the laws of the State of origin.

Fiduciary-300x185When proceedings are filed in Surrogate’s Court regarding a decedent’s estate, the primary focus is inevitably on the person who is, or is seeking to be, the estate fiduciary.  In cases of intestacy, there may arise issues regarding the qualification of the individual seeking to be appointed as administrator.  Similarly, if the decedent died leaving a Last Will and Testament, the person applying to be appointed as executor also must meet certain qualifications.

It is not usual for other family members or interested parties to file objections with the Court regarding the appointment of the petitioning party.  These issues may also arise during the course of estate settlement where persons who are estate beneficiaries seek to remove an already-appointed fiduciary due to claimed wrongdoing or breach of fiduciary duty.  Such alleged conduct can include loss or waste of estate assets, undue delay in settling estate affairs or conflicts of interest regarding the disposition of assets or inequitable treatment of beneficiaries’ interests.

In all of these types of cases, the Court is very cautious regarding the disqualification or removal of an administrator or executor.  There is great preference afforded to the choice of a fiduciary, such as an executor, by a decedent.  Also, there is a statutory designation as to whom has priority to be appointed as administrator of an intestate estate.

Guardianship-300x201Article 81 of the Mental Hygiene Law contains the provisions regarding the appointment of a Guardian.  As discussed in many earlier posts in the New York Probate Lawyer Blog, the statutes provide for the appointment of a property management Guardian and also for a personal needs Guardian.

When an application is made to a Court for a Guardianship appointment, the Court is provided with a proposed Order to Show Cause and a verified petition.  The information which is to be included in the petition is described in MHL 81.08.  This information includes details concerning both the alleged incapacitated person and the petitioner.  Also, the name, address and telephone number of any proposed Guardian should be supplied along with reasons why the proposed designee is suitable to act as Guardian.

The primary function of the Court in these matters is first and foremost to determine whether the AIP is incapacitated.  Clear and convincing evidence is needed to show incapacity.  MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” provides the guidance for these issues.  Typically, a person’s functionality and ability to handle activities of daily living are closely examined.

shutterstock_635914376-300x144The appointment of an Article 81 Guardian in New York is a serious process.  Each case begins with the preparation of a Verified Petition which provides details regarding the condition and circumstances of an alleged incapacitated person (AIP).  The Court needs to be informed about the person’s family, assets and overall ability to handle activities of daily living.  Additionally, information regarding the petitioner and his relationship with the AIP is important.

Also, the petition must provide details regarding any advance directives such as a power of attorney, living trust or health care proxy.  The Article 81 statute provides a number of provisions to insure that the Court is fully informed and that the rights of the AIP are protected.  There is always a concern that a Guardianship may be used to take advantage of someone who cannot protect their own interests.  Mental Hygiene Law (MHL) Section 81.09 entitled “Appointment of court evaluator” details the process for the designation of such person.  Essentially, a court evaluator is someone chosen by the Court to investigate the factual background of the Guardianship case as an impartial observer.  After the investigation is completed there is a report presented to the Court for review along with various recommendations.  The recommendations relate to whether a Guardian should be appointed and, if so, who should be appointed.  MHL 81.09 provides a long list of the Evaluator’s duties which includes interviewing the petitioner and other persons involved in the case.  Also, the Evaluator explains to the AIP the possible consequences and the nature of the Guardianship proceeding.

Although the personal medical records of an AIP may be privileged and not disclosed in a hearing, the Evaluator may obtain permission from the Court to review these items.

shutterstock_1465659569-300x201In situations where a person is in need of assistance with handling personal needs or property management, the New York law provides for the appointment of a guardian.  Article 81 of the Mental Hygiene Law (MHL) contains the statutory and procedural rules regarding guardianship appointment and operation.

Essentially, under MHL 81.02, a guardian may be appointed when it is found necessary to provide for a person’s personal needs or property management.  Usually, a determination of incapacity is needed.  Incapacity must be shown by clear and convincing evidence and involves a finding that a person will suffer harm because they cannot understand and appreciate the extent of their disability.  The New York Probate Lawyer Blog has published many articles discussing different aspects of the guardianship law and process.

A guardianship must be commenced in the Court and all interested parties need to be notified.  Typically, the Court will appoint an attorney to represent the alleged incapacitated person and also a Court Evaluator.  The Court Evaluator investigates the facts and circumstances surrounding the guardianship petition and provides the Court with a report and recommendations.  MHL 81.21 lists various property management powers which can be given to the guardian.  MHL 81.22 lists various personal needs powers which a guardian may have.

Probate-300x201The New York Probate process is utilized in order for a Last Will and Testament to be admitted to probate.  When this procedure is successfully completed, the Surrogate’s Court issues a Decree which essentially validates the provisions of a Will.  The Probate Decree also usually provides that letters testamentary should be issued to the proponent of the Will which is typically the person designated in the document to be the Executor.  Letters testamentary is the paper which sets out the authority of the Executor to handle estate affairs such as the collection of assets, payment of debts and claims, and filing of estate tax papers.  The executor has the fiduciary responsibility to settle the estate.  The New York Probate Lawyer Blog has published many articles regarding the requirements to probate a Will.

As discussed in previous blog articles, the primary document submitted in this process is the probate petition.  Forms of the petition can be found on the internet as part of the official New York Surrogate’s Court forms.  The petition requires that certain information be provided to the Court.  This data includes identification of the decedent, the petitioner, the date of and witnesses to the Will.  Additionally, the petition requires that the names and addresses of all of the decedent’s distributees (next of kin) be listed, as well as the information regarding the persons named in the Will.  This listing of all of the interested parties provides the Court with assurance that everyone who is involved with the Will has notice of the probate matter and that the Court can secure proper jurisdiction over all parties.

It is not uncommon that one or more of the interested parties is incapacitated or incompetent to represent their own interests.  A person may be a minor or suffering from a condition such as dementia.  There is a separate paragraph in the probate petition to provide the details regarding such person under a disability.  In these cases, the Court has the ability to appoint someone, known as a Guardian ad Litem, to represent the interests of the disabled person in the probate case.  The Court typically appoints an attorney to represent the parties’ interests.  The New York Civil Practice Law and Rules Section 1201 provides that infants can be represented by a Guardian ad Litem as well as an adult who does not have the capability of defending or prosecuting his rights.  Of course, if the person already has a Court-appointed Guardian, the Court may allow such appointee to represent their interests.

shutterstock_571088005-300x200In order for a Last Will and Testament to be admitted to Probate, the Surrogate’s Court must be presented with all of the papers needed to satisfy the requirements of the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act.  The document which initiates the probate process is the Petition for Probate.  This paper contains detailed information regarding the decedent, the Last Will, an estimate of the estate value, the names and addresses of the decedent’s distributees and the persons named in the Will.

The New York Probate Lawyer Blog has published many articles concerning the requirements for probating a Will.  EPTL Section 3-2.1 entitled “Execution and attestation of wills” sets forth the mandated requirements for the due execution of a Will.  Prior to the COVID pandemic, the execution of a Will prepared and supervised by an attorney was a relatively straightforward process.  In short, the attorney, the attesting witnesses and the testator would gather together and have the various signatures applied along with a notary for a witness affidavit.  However, due to COVID this social interaction was prevented and New York passed certain legislation which allowed for remote execution of Wills.  However, the remedial statute presented explicit guidelines which, if not complied with, may compromise the validity of the Will.

A recent Queens estate case decided by Queens Surrogate Peter Kelly on February 23, 2022 entitled Estate of Holmgren dealt with the probate of a COVID rule Will.  In Holmgren, the Court reviewed New York Executive Order (202.14) which allowed remote execution.  This Order, as found by the Court, did not replace the requirements of 3-2.1.  Instead, the Court noted that the Order allowed the “use of audiovisual technology to satisfy the ‘presence’ requirements contained in the statute.”  The Surrogate went on to review in detail the various rules in the Order which needed to be followed to allow a COVID-type Will execution to form a basis for admitting a Will to probate.

20200522-Estate-Planning-300x200Estate planning in New York is important to preserve assets and insure a proper distribution after death.  The New York Probate Lawyer Blog has published many articles concerning planning an estate.  These articles have included discussions about Last Wills, Living Trusts, Health Care Proxies, Living Wills and Powers of Attorney.  It would seem that preparing a plan is fundamental.  There are also many articles in the Blog concerning Article 81 Guardianships.

Many individuals assume that if they are not considered to be wealthy that engaging in estate planning is a waste of time.  Nothing could be further from the truth.  In fact, as we have seen, even individuals who accumulate a fortune sometimes fail to adequately provide any planning.  As a result, their estates and families suffer tremendous post-death consequences.

A recent post at entitled “Prince’s Estate is a Royal Mess:  5 Ways You Can do Better”, dated February 5, 2022 and written by Jack R. Hales, Jr., J.D., describes the problems faced by the late pop star’s estate.  Apparently, Prince did not have a Will.  In New York, if you do not have a Will, the distribution of your assets is controlled by the laws of intestacy.  An intestate estate is distributed to a decedent’s next of kin in the order of priority set forth in Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.”  As pointed out in the article, a Will allows a person to determine their testamentary plan.  Additional considerations include dealing with minor children and the creation of trusts.  Of course, creating a Will allows a testator to specifically identify particular aspects of estate distribution and create detailed directions to deal with these matters.

After a person dies, there is a need to settle the estate of the decedent.  If the decedent prepared a Last Will and Testament, then the Will needs to be probated.

The New York probate process can be complicated, especially if there is a Will Contest.  One of the most important initial steps in Will probating is determining the identity of the decedent’s next of kin, who are also known as distributees.  Surrogates’ Court Procedure Act (SCPA) section 103(14) defines “Distributee” as “any person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.”  The probate petition must contain information as to the names and addresses of the distributees since they are among the persons entitled to receive notice regarding the commencement of the case.  They also have a right to contest the Will since the distributees receive an intestate share of an estate if there is no Will. Service of process is important because the probate of a Will is not valid against interested persons who were not properly notified about the case.  The New York Probate Lawyer Blog has extensively discussed probate and Will contests in earlier posts.

A person filing a probate petition with the Surrogate’s Court needs to refer to SCPA section 1410 entitled “Who may file objections to probate of an alleged will”. Under this statute, if a person who is interested in an estate would be “adversely affected” if a Will is probated, such person may be entitled to file objections to the Will.  The statute must be examined carefully in each case to ascertain the identity of interested parties.  Estate litigation is complicated.  In addition to distributees, persons who may have received bequests in earlier Wills, but who are now disinherited in a later Will being offered for probate, may be necessary parties who must receive notice (a citation) in the proceeding.

Estate Litigation in New York can arise in connection with many different issues. The Surrogate’s Court is a forum in which matters concerning decedents’ Wills and Trusts are typically dealt with.  The New York Probate Lawyer Blog has discussed in many posts the various documents that comprise a persons estate plan.  These papers include a Last Will, Living Will or Revocable Trust, Health Care Proxy and Living Will.

It is common that a person may create a Living or Revocable Trust along with what is known as a pour-over Will. Briefly stated, the main reason for the creation of a Revocable Living Trust is to avoid probate. Also, the trust provides a means for property management in the event the trust Grantor becomes disabled. Continue reading

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