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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.Where Will provisions are ambiguous, there may be estate litigation in the form of construction proceedings whereby the Court may determine the meaning that the testator intended. Of course, the testator is no longer alive and his intentions may be misconstrued or not capable of being discerned. Contested Will construction cases in the Surrogate’s Courts can be costly and time consuming.

Another problem that is common is when a provision in a Will is ineffective. This can occur where a named beneficiary is pre-deceased or cannot be adequately identified. Unless the provisions in the document clearly describe the intended beneficiary or provide for alternative dispositions in the case of a pre-deceased beneficiary, the ultimate payment of estate funds may be delayed pending a resolution of these issues. Additionally, there are cases when a named beneficiary, such as a charity or other entity, simply does not exist or is unable to receive the intended bequest. Fortunately, at least regarding charities, the New York estate laws allow the Court to make substituted provisions. This was the situation in a recent case decided in the Bronx Surrogate’s Court by Judge Nelida Malave-Gonzalez. The case is entitled Estate of Reiss and was decided on March 5, 2018.

In Reiss, the decedent left a Will that provided that 50% of her residuary estate was to go to a Jewish charity that provided assistance to the Jewish community and Holocaust survivors. The problem was that the named charity was no longer operating and could not reserve the bequest. The Court was able to rely on EPTL Section 8-1.1( c)(1) entitled “Disposition of property for charitable purposes” which allowed the Court, under the Cy Pres Doctrine, to designate alternate charities that would carry out the decedent’s intent.

As can be seen from Reiss, it is important to create a Will and to make certain that the provisions in the document are effective and clear in order to distribute estate funds according to a testator’s intent. In the case of charities it is probably a good idea to check from time to time to make certain that the charity is still in operation and is the right recipient to use the bequest in the manner the testator desires.

I have represented many clients in creating an estate plans and settling estates in the Surrogate’s Court.  Call me now for a free review of your situation regarding a plan or an estate matter.  An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests.

New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.

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