Creating a Last Will involves a number of considerations. A person should take an inventory of his assets including the value of each and the type of ownership. It is important to know if the asset is owned in the person’s individual name, or is a joint asset or payable on death to a designated beneficiary.
Also, decisions need to be made concerning the identity of the beneficiaries to be named in the Will, as well as the amount of the bequest each is to receive. An Estate Lawyer in New York City can be helpful with creating a plan and understanding the nature and effect of asset ownership and Will provisions.An important aspect of Will preparation is the naming of fiduciaries. Fiduciaries that can be named in a Will are Executors and Trustees. As to the Executor nomination, this is usually used to name a close relative such as a spouse or a child. However, there is no hard and fast rule regarding Executor naming. A testator can, and should, nominate a person or persons who appear qualified to carry out the testator’s wishes.
There can be more than one Executor acting at the same time. They will be Co-Executors and each obtains the same authority as the other. When nominating Co-Executors, a testator should be careful and be sure that these persons can work together and are not adverse to one another. It is a good practice to name at least one alternate or Successor Executor. If the person named as the primary Executor is unable to act, the alternate can apply to the Court for appointment. This is a simpler process than having competing family members try to have themselves appointed when there is no designated successor fiduciary. This can lead to delay in estate administration. The New York Probate Lawyer Blog has published many articles about estate administration and estate settlement.
The appointment of an Executor can also be the subject of estate litigation in the Surrogate’s Court. Named Executors and other fiduciaries can be removed or rejected if they breach their fiduciary duties or are otherwise found to be unfit to serve. In a Bronx Estate entitled “Estate of Pepe”, Bronx Surrogate Nelida Malave-Gonzalez, in a decision dated March 1, 2018, refused to appoint a nominated Executor. In Pepe, the named Executor: (i) delayed probating the decedent’s Will; (ii) lived in the estate property without paying use and occupancy; and (iii) used the rental income from estate property for his personal use. The Surrogate found that the named fiduciary was wasting and improperly using estate assets and was improvident regarding managing estate property. Based upon these findings and pursuant to Surrogate’s Court Procedure Act (SCPA) Section 707 entitled “Eligibility to receive letters” and Section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct”, the Court found that the nominated Executor lacked the qualifications to be appointed.
I have represented many Executors and other fiduciaries in estate matters as well as estate beneficiaries. Call me now for a free discussion if you have a question or issue regarding an Executor or Estate Litigation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.