New York Probate Lawyer Blog

April 21, 2022

New York Guardianship – A Flexible Approach to Incapacity

In 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.

April 12, 2022

Undue Influence May Be Involved With Wills and Deeds

by Jules M. Haas

Probating a Will in New York requires that the document satisfy the Court requirements for authenticity. In other words, a Last Will must be executed in the manner required by the Estates, Powers and Trusts Law. This requires a writing and at least two witnesses.

In addition to the basic statutory directives, the Surrogate’s Court may be shown that a decedent had testamentary capacity and was not subject to undue influence. Testamentary capacity typically concerns whether a person recognized that he was signing a Will and had knowledge concerning the natural objects of his bounty (i.e., his family and friends) and also was aware of his assets. This basic knowledge reflects on a person’s ability to dispose of an estate.

When it comes to the area of undue influence, the effect of such a factor becomes much less defined and many times more difficult to determine. Undue influence concerns influence which a person normally would not succumb to, absent other factors. These other factors may be susceptibility due to old age or illness or even dependence. The prevailing factual climate and circumstances surrounding a decedent at the time of signing a Will may involve numerous events. Motive and opportunity are always considerations. The New York Probate Lawyer Blog has many articles concerning Will contests and probate.

April 1, 2022

Preliminary Letters Testamentary Benefit Estate Settlement

by Jules M. Haas

When a person dies leaving a Last Will and Testament, he is said to have died testate. This is unlike a situation where there is no Will. In such case, the person is said to have died intestate. In order for a Will to control the disposition of a decedent’s estate, the document must be filed with the Surrogate’s Court and validated as being authentic. This is known as the probate process. The New York Probate Lawyer Blog has published numerous articles containing information about all aspects of probate in New York.

In the typical case, a Will contains many different provisions concerning the disposition of a decedent’s assets. There may be specific bequests, the creation of testamentary trusts and residuary dispositions. Additionally, a Will typically has a provision in which the proposed executors, and if appropriate, trustees are identified. The designation of fiduciaries and substitute appointments by a testator is very important because it gives priority to the named persons to act in the capacity for which they are nominated. The Courts are very protective regarding respecting these appointments because the goal is to have the decedent’s choices honored unless there is a very good reason for deviation.

Sometimes, the admission of a Will to probate can be delayed due to a Will contest or other issues such as a kinship determination. If this happens, Surrogate’s Court Procedure Act Section 1412 entitled “Preliminary letters testamentary” provides the procedure for the appointment of a Preliminary Executor. A Preliminary Executor can be appointed by the Court to act temporarily before probate is complete. Such appointment insures that estate settlement can go forward and assets can be protected and collected during the time the full probate is being completed. A preliminary executor essentially has all of the powers and authority as a permanent executor except for the authority to make distributions to beneficiaries. Obviously, this is very beneficial to the estate. Also, the Will may have a provision for the waiving of a bond by the executor. The Surrogate sometimes requires the preliminary executor to post a surety bond.

March 25, 2022

Surrogate’s Court Proceedings Require a Determination of Domicile and Venue

by Jules M. Haas

The commencement of a proceeding to initiate the settlement of a decedent’s estate requires a determination of the proper Court to accept the filing of papers. Upon the death of a decedent, it is first necessary to find whether the decedent had prepared a Last Will and Testament or died intestate. This information will allow a petitioner to properly prepare either a petition for probate to receive letters testamentary or a petition for letters of administration.

Additionally, a finding must be made before a filing as to the jurisdiction in which the decedent was domiciled. Domicile involves more than just residence. A person can have multiple residences in different states or even countries. However, there is only one place of domicile which is where a decedent maintained his primary home. Usually domicile is easy to locate since a decedent would file taxes, have a place of business or employment, maintain bank accounts and have other local connections. There are occasions when such a determination may be more difficult to finalize. Domicile is important because the place of domicile, for the most part, will determine the local estate laws which apply to the estate. Also, the Court in the place of domicile is usually the proper forum to file the estate proceeding. The New York Probate Lawyer Blog has discussed the issue domicile in earlier blog posts. Disputes regarding domicile may involve substantial issues of estate rights. For example, a spousal right of election may have different benefits in one jurisdiction as opposed to another.

In addition to domicile, an issue may arise as to the appropriate local Court to file the estate papers. Thus, when there is a domiciliary of New York State, is it proper to file papers in the Queens Surrogate’s Court, or should the papers be filed in Manhattan Surrogate’s Court? Again, a review of the decedent’s domicile location becomes important.

March 17, 2022

The Probate Process May Require the Appointment of a Guardian ad Litem

by Jules M. Haas

The 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.

March 10, 2022

Probating a New York Will Executed Remotely Pursuant to COVID Guidelines Presents Difficulties

by Jules M. Haas

In 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.

March 3, 2022

An Estate Attorney Can Be Essential for Estate Settlement

by Jules M. Haas

Whether a decedent dies intestate without a Last Will and Testament, or with a Will, the retention of an experienced estate attorney can be essential to settling an estate efficiently. In the case of intestacy, a proceeding to obtain letters of administration will be required to collect assets that are held in the name of the decedent. A petition for letters of administration requires that all of the decedent’s distributees (next of kin) be identified by name and address. In many cases, the identity and location of distributees is unknown. An experienced estate lawyer is familiar with the process of locating unknown heirs and retaining the services of professional genealogists when needed. Obtaining an Order from the Surrogate’s Court to allow the publication of a Citation for unknown distributees requires a demonstration of a due diligence search.

An attorney can be an essential part of the process in completing kinship issues in these situations. Sometimes representation in a kinship proceeding may be needed.

As to probate proceedings, the probate process can be complicated. There are many aspects to having the Surrogate’s Court admit a Will to probate. A probate attorney is able to examine a Will to see if it was executed properly according to the estate laws. Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides the requirements for executing Wills. Additionally, persons who are dissatisfied with Will provisions may file a Will contest to challenge the validity of the document. A probate lawyer is familiar with procedures that occur in contested Will cases. These include dealing with issues such as undue influence and testamentary capacity. Also, deposition testimony of the attesting witnesses to a Will and the attorney who drafted the Will is part of the Will contest process.

February 24, 2022

A Pre-Death Gift from a Decedent May Be Difficult to Substantiate

by Jules M. Haas

The process of determining the identity of assets which belong to an estate is a fundamental responsibility of an executor or administrator. In most cases it is easy to locate a decedent’s bank or financial accounts or real estate. There are typically statements or deeds or other documents which clearly show the ownership of the asset. Also, account balances or real estate valuations are available on a routine basis. Most fiduciaries appointed by the Surrogate’s Court can complete the asset investigation process without much delay.

However, there are numerous instances where asset identification and collection can be complicated and involve estate litigation. The New York Probate Lawyer Blog has published many articles concerning assets and estate settlement. In situations where it appears that a third party is withholding assets which belong to an estate, the Surrogate’s Court Procedure Act provides some remedies. SCPA Section 2105 entitled “Proceeding to compel delivery of property by a fiduciary which is claimed by another or others” allows a fiduciary to engage in discovery measures to ascertain if estate property is being withheld. Deposition testimony and document review is available to assist in this investigation. If it appears that assets of an estate are being withheld, the Court can hold a hearing to determine proper ownership.

Another Surrogate’s Court method of review regarding asset collection involves the accounting process. Accounting proceedings require the administrator or executor to provide to estate beneficiaries all information regarding asset collection and expenditures from an estate. This allows a beneficiary to examine whether estate assets have been properly collected and disposed of. A recent Ulster County estate case entitled Estate of Oakley, decided by Ulster Surrogate Sara McGinty on February 9, 2022, concerned an interesting issue regarding estate asset ownership. In Oakley, an executor had provided an accounting. Among the contested items relating to the accounting were checks totaling $95,000.00 which appeared to have been signed by the decedent right before death. These checks were made payable to the executor. The executor claimed that the checks were given to him by the decedent as gifts. In reviewing the alleged gift transactions, the Court found that neither of the two checks comprising the $95,000.00 total were credited to the executor’s bank account prior to the decedent’s death. The Court pointed out that in order for an alleged gift to be completed, the subject of the gift needs to be delivered. A gift in the form of a check becomes complete when a check has been deposited into and credited to the payee’s account during the lifetime of the donor / payer. Where the donor dies before the completion of the deposit and the credit, a gift is incomplete. Since the funds represented by the checks were not transferred, they remained part of the decedent’s assets.. The $95,000.00 was an estate asset.

February 16, 2022

Estate Planning Mistakes Happen to the Rich and Famous

by Jules M. Haas

Estate 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 Kiplinger.com 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.

February 9, 2022

Estate Administration and Reverse Mortgages

by Jules M. Haas

New York estate administration involves the collection of assets and the payment of the decedent’s debts and obligations. Assets may include bank accounts, financial holdings in brokerage accounts, pension funds, 401(k) accounts and life insurance. One of the major assets typically found in an estate is real estate. This asset is usually the home where the decedent lived.

Among the many types of debts and obligations, there may be credit card balances, hospital or medical bills, car loans and other outstanding debt obligations. The major source of a debt obligation is most commonly the unpaid mortgage balance on a decedent’s home.

In many cases, mortgage debt cannot be paid without selling the real estate against which it is filed as a lien.