Estate Planning in New York involves the preparation of a number of different papers. Included among these documents is a Last Will and Testament. The New York Probate Lawyer Blog has posted many articles concerning the importance of preparing a Last Will as well as the need for the Will to clearly express a person’s intentions.
When a person takes the time and effort to prepare a Will it is essential that the document clearly provide the benefits that the creator wants to put into effect upon death. A New York Estate attorney typically works closely with his clients to fully understand the assets and estate plan that is to be incorporated into the Will document. Continue reading
There are many cases in the Surrogate’s Court which involve a Public Administrator. Generally, a Public Administrator is a public official who is given the authority to administer estates where no other person or entity is properly available to act as fiduciary. Article 11 of the Surrogate’s Court Procedure Act (SCPA) sets forth provisions regarding such administrators in New York City. For example, SCPA Section 1112 is entitled “Authority to act” and provides that the Public Administrator in a county, such as Kings County or Queens County, can “take charge of the personal property of the intestate” when a decedent dies intestate and there is no known person eligible to receive letters of administration. Continue reading
Beneficiaries of an Estate in New York may be determined in a number of different ways. The most recognizable method of beneficiary designation is the naming of an individual or institution to receive a benefit in a Last Will. There are many different types of dispositions that can be made in a Will such as leaving a specific item or property to a beneficiary or by just setting forth that the beneficiary is to receive a certain share or percentage of an estate.
Another method of beneficiary selection is where a decedent does not prepare a Last Will. When a person dies intestate his estate is distributed to his distributees (i.e. heirs at law). The persons who qualify as distributees are determined by the New York Estate laws. Estate Lawyers in New York are familiar with Estates, Powers and Trusts Law (EPTL) Section 4-1.1 which provides the priority of the individuals entitled to share in the intestate estate. EPTL 4-1.1 is entitled “Descent and distribution of a decedent’s estate”. This statute has been discussed in many prior articles in the New York Probate Lawyer Blog. Continue reading
Fiduciaries in New York are appointed to administer estates and trusts. With regard to an estate, the Surrogate’s Court appoints either an Executor or Administrator depending upon whether the decedent had a Last Will. When a Last Will exists, the document is offered for probate and the Court appoints an Executor. In situations where a decedent dies intestate (without a Will) the Court appoints an estate Administrator.
With regard to Trusts, there are many different types of trusts. There can be inter vivos trusts that are generally created during a person’s lifetime. There are also testamentary trusts that are created pursuant to the terms or provisions in a Last Will. The Trustee supervises the administration of the trust according to the trust terms. Continue reading
Fiduciaries who are appointed by the Surrogate’s Courts in New York have many responsibilities. The fiduciary can be an Executor or an Administrator. It is very common for a decedent’s estate to have amongst its assets real estate. In fact, in many situations a decedent’s home may be the most valuable asset of an estate.
Single and multi-family homes exist throughout the New York Metropolitan area and over the years the value of these properties have increased dramatically. The New York Probate Lawyer Blog has provided numerous posts that discuss issues relating to the eviction of persons who occupy estate real property. To re-cap, when a person dies the house in which he/she lived may continue to be occupied by someone who is not entitled to receive the entire property either pursuant to a Last Will or through intestate administration. The occupant could be a third-party tenant or perhaps even a relative of the decedent. Continue reading
The probate of Wills in New York can be very complicated. The Estates, Powers and Trusts Law (“EPTL”) Section 3-2.1 entitled “Execution and attestation of Wills; formal requirements” provides the basic requirements for the proper execution of a Will. The New York Probate Lawyer Blog contains many articles discussing the basic Will execution requirements which include items such that a Will generally must be in writing, signed by the testator at the end and there needs to be at least two attesting witnesses.
Estate Lawyers in New York City sometimes prepare Wills that contain provisions known as “No Contest” clauses or “In Terrorem” clauses. Essentially, these provisions that can appear in a Last Will or a Living Trust provide that a beneficiary will forfeit his bequest or interest in the event he unsuccessfully challenges the validity of the document. EPTL Section 3-3.5 entitled “Conditions qualifying disposition; conditions against contest; limitations thereon” sets forth the statutory provisions regarding these types of clauses. Continue reading
The settlement of a decedent’s estate can be viewed as encompassing three stages. Estate Lawyers in New York City are familiar with this process. The first step involves the appointment of the estate representative. When a decedent leaves a Last Will and Testament the Will is filed with the Court and submitted for probate. Once the Will is admitted to probate, the Court appoints an Executor. In situations where the decedent dies intestate (without a Will), a proceeding for Letters of Administration is presented to the Court and the Court then appoints an estate Administrator.
After a fiduciary is appointed, the second stage of the estate settlement process involves the collection of estate assets and the payment debts, taxes and other obligations. As discussed in earlier posts in the New York Probate Lawyer Blog, both of the above stages can be filled with complex issues such as Will Contests and Surrogate’s Court Litigation regarding the assets and obligations of a decedent. Continue reading
In New York City it is very common that a person may own a cooperative apartment. Essentially, the ownership of a co-op apartment has two aspects. A person is a stockholder of and owns shares in the cooperative corporation. The vested interest in the corporation provides a person with the right to be the lessee in a proprietary lease for his apartment.
As most cooperative apartment dwellers know, the co-op owner is subject to many corporate rules and regulations that are contained in various forms such as the proprietary lease, the corporation’s by-laws and the house rules. Perhaps the most well known rule or restriction regarding these apartments is that the ownership rights cannot be sold or transferred without the express approval of the corporation. The general law in New York provides that cooperative corporations have broad and usually unreviewable discretion to approve or disapprove of a prospective purchaser or transferee. While the corporation cannot engage in discriminatory conduct, it can disapprove a transaction for any reason and generally does not need to disclose the reason for such rejection. Continue reading
An Executor or Administrator in New York has a duty to discover and collect all of the assets that rightfully belong to a decedent’s estate. If the estate fiduciary fails to perform this task properly the estate beneficiaries may claim that there was a breach of a fiduciary duty.
Identifying and collecting estate assets requires that the fiduciary act diligently and pursue proper avenues to complete his obligations. The New York Probate Lawyer Blog has previously discussed some of the Estate Litigation procedures that can be used to recover estate property. For example, Surrogate’s Court Procedure Act (SCPA) Section 2103 provides a very common method to obtain estate assets. This statute is entitled “Proceeding by fiduciary to discover property withheld or obtain information.” When an executor or administrator has information that a third party has possession of an asset that belongs to an estate, the fiduciary can file a petition with the Surrogate’s Court to obtain the property. SCPA Sections 2103 and 2104 contemplate two types of Court proceedings. First, the statute allows the fiduciary to obtain information from the third-party by deposition questions and paper discovery as to whether the person is actually in possession of estate property. If so, the statute then provides for a proceeding in which the actual ownership of the property can be determined. Continue reading
New York Estate Settlement can be complicated by many different factors. After a person dies a fiduciary such as an Executor or Administrator will be appointed to handle estate affairs. The New York Probate Lawyer Blog has provided numerous posts discussing the procedure to appoint an estate fiduciary. In short, where a decedent leaves a Last Will, the Will is submitted to the Surrogate’s Court for probate. When the Will is admitted to probate an Executor is appointed who is responsible for estate settlement.
When a decedent does not have a Last Will he is deemed to have died intestate. An Administrator is appointed for intestate estates. Typically, the Administrator is one or more of the decedent’s next of kin called distributees. The distributees, according to their relation to the decedent, have priority to be appointed as an Administrator. Continue reading