Estate planning in New York is essential to the proper administration of a decedent’s estate. Creating an estate plan that includes a Last Will, Living Will, Health Care Proxy, Power of Attorney and possibly a Living Trust can facilitate the process by which assets are passed to family and friends and advance directives regarding health care can be carried out.
When engaging in the planning process it is essential that the technical and statutory requirements and estate rules are adhered to so that the papers and documents created are effective. When a Last Will is prepared and executed in a manner that is subject to dispute, a decedent’s estate can be the subject of a long and complicated Will Contest. Estate litigation is not uncommon when planning documents are unclear and confusing or are not completed according to the standards required by law.The New York Probate Lawyer Blog has pointed out many instances when estate settlement has been delayed due to Surrogate’s Court lawsuits and litigation. Past discussions have referred to Estates Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of wills; formal requirements.” This statute provides the fundamental aspects required when signing and witnessing a Will. When these formalities are not complied with, Objections to a Will being admitted to probate are very likely to occur.
There are many other aspects of estate laws and the estate tax laws that should be reviewed and followed when preparing estate documents. Many of these mandates are simple to follow as long as an effort is made to do so. Unfortunately, where there is non-compliance with standard rules, a decedent’s desires and the administration of his estate can be disrupted. An example of what seems to be a fairly simple error of compliance appears in a case entitled Estate of Goodman, which was decided by Manhattan Surrogate Nora Anderson on May 21, 2015. Goodman involved a contested Accounting proceeding. The accounting was filed by the decedent’s executor who was also the attorney who drafted the decedent’s Last Will. One of the issues presented was whether the attorney-executor would be entitled to receive attorneys fees as well as executor commissions for settling the estate. Surrogate’s Court Procedure Act (SCPA) Section 2307-a, entitled “Commissions of attorney-executor”, requires that certain disclosures be made to a person when naming the attorney-drafter as executor in order for the attorney to be entitled to receive both a full commission and attorneys fees. In Goodman, the attorney failed to provide the decedent with all of the required disclosures. Thus, the Court found that the attorney was only entitled to one-half of the statutory commissions allowed by the SCPA.
It may be that the decedent understood and wanted the attorney to receive both a full commission and attorneys fees. However, because the attorney did not fully comply with the statute’s mandates, full payment was not allowed by the Court.
I have assisted clients with their estate plans and the processing of estate documents in Surrogate’s Court. It is always important to follow the statutory rules and procedures so that all planning documents are properly completed and Court proceedings are not complicated by unnecessary disputes. If you have any questions regarding estate planning or a Surrogate’s Court proceeding, please call me to discuss your matter.
An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution. 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: firstname.lastname@example.org, for an initial consultation.
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