Estate planning in New York is an important consideration for many reasons. In addition to designating the manner in which a persons assets are to be distributed, an important aspect of planning is the nomination of an estate Executor. By creating a Last Will a testator can name the persons who are to act as Executors and also Successor Executors, if needed. Obviously, selecting the individuals that you trust and have confidence in to carry out the terms and intentions of the Will provisions provides the essence of insuring that a plan for estate settlement is accomplished.

When a person dies intestate, or without a Will, his estate becomes subject to the rules and laws concerning an Administration proceeding rather than the probate process. The Administration proceeding is focused on the appointment of an estate Administrator. Since there is no Will that nominates a fiduciary, the proceeding is controlled by Surrogate’s Court Procedure Act (SCPA) 1001 which is entitled “Order of priority for granting letters of administration”.  The statute provides the list of the decedent’s next of kin who have the right to be appointed as the estate Administrator. According to the statute, the decedent’s spouse has priority, then children, grandchildren, the decedent’s parents and then brothers and sisters. While the statute provides an orderly process for the appointment of an Administrator, the persons who have priority may not have been the first choice of the decedent if he had named an Executor in a Last Will. Continue reading

Estate attorneys in New York are familiar with the many statutes and rules regarding the ownership of property.  One of the fundamental aspects involved in estate planning is knowing and understanding the manner in which a testator owns his assets.  As examined in many previous posts in the New York Probate Lawyer Blog, a Last Will typically only controls the disposition of assets that a decedent owns in his name alone.  Property interests that are held in joint tenancy or with a designated beneficiary such as a life insurance policy pass directly to the surviving joint owner or beneficiary upon a person’s death and do not become part of the estate subject to disposition by the terms of the Last Will.

In particular, in the case of real estate that is owned by a husband and wife, New York law creates a special aspect of ownership called a tenancy by the entirety.  This type of ownership essentially provides that when one of the spouses dies, the surviving spouse automatically becomes the sole and absolute owner of the property provided the parties remain married at the time of death. In view of these property rights, lifetime dispositions of one spouse’s interest in the property cannot interfere with or prevent the survivor’s right to become the sole owner upon the other parties death. Continue reading

When an individual dies it seems more than apparent that the decedent no longer has the ability to act on his own behalf. Likewise, others cannot interact or engage in actions that affect the deceased person. It is for that reason that the New York estate laws provide for the appointment of an Executor or Administrator who has the legal authority and power to act in the place and stead of the decedent.

The New York Probate Lawyer Blog contains many posts discussing the duties and powers of estate fiduciaries. As explained, an Executor is appointed when a Last Will is admitted to probate. An Administrator is appointed when a person dies intestate. The Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act contain the statutory provisions that allow for the appointment of the fiduciary. Continue reading

A New York Estate is subject to potential estate tax under both Federal and State law. Whether an estate is potentially taxable and requires the filing of an Estate Tax Return depends primarily upon the value of a decedent’s gross estate.   In general the gross estate is comprised of all of the assets that a decedent owned at the time of his death including all items passing under a Last Will or by intestacy as well as items transferred by operation of law. These latter items include assets that are owned jointly with others or which have named beneficiaries such as retirement accounts and life insurance. For example, assume that a decedent left a Will and the value of the assets that were part of his probate estate were $1 million. In addition, assume that the decedent had joint assets such as real estate or bank accounts with a value of also $1 million. Thus, the gross estate value appears to be $2 million dollars.
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New York Estate Planning can involve many different aspects. In most instances, individuals assume that the need to consult an estate planning attorney only arises when a person has significant assets that may result in the imposition of Federal estate taxes or state estate taxes. In fact, even when there is no potential for taxes being imposed at death, the preparation of a Last Will is really a form of estate planning by avoiding the uncertainty of intestate administration.

When tax planning is or may be important, one of the more common planning methods is to use life insurance as a planning device. Life insurance can provide a means by which an estate can increase liquidity and provide funds to pay estate taxes and monetary bequests. A common use of insurance is to create an insurance trust that will own the insurance policy.  The trust will be separate from the decedent’s taxable estate and, therefore, not increase the taxes payable. Continue reading

When a person dies without a Last Will he is considered to have died intestate. Queens estate attorneys, like those in other counties, are familiar with the procedure to have an Administrator appointed to settle the estate. The Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL) provide the statutory rules and procedures for the appointment of a fiduciary. Typically, anyone who is interested in the estate settlement can petition the Court for the appointment of an administrator. However, the statutes provide an order of priority for the persons who can actually be appointed.

The procedures of the Surrogate’s Court can be very complex and confusing to family members who are faced with having to handle issues relating to a decedent. It is usually a good practice to obtain the guidance of a New York Administration attorney to assist with these matters. A recent case decided by Staten Island Surrogate Robert Gigante  on December 2, 2014 illustrates the problems that can arise when a person does not obtain the help of an estate lawyer. In Matter of Dinger, a grandson of the decedent petitioned the Court to have himself appointed as estate administrator. This petition was opposed by a daughter of the decedent. The grandson claimed that the decedent owned a cooperative apartment. However, the daughter asserted that she owned the apartment with her mother as joint tenants with rights of survivorship.  Such ownership would have kept the cooperative apartment out of the administration estate since it would have passed automatically by operation of law to the daughter.   Continue reading

A common issue that is found in many contested Guardianship cases and Estate matters is whether a person’s beneficiary designations or asset plan has been the subject of undue influence.    New York  City Estate Lawyers, like those throughout the state, are accustomed to having clients claim that the only reason the client was not named as a decedent’s beneficiary was because the individuals who did receive assets improperly influenced the decedent’s decisions. Undue influence is not an easy concept to prove or even to completely understand. Courts have recognized that undue influence is not easily determined.  Also, wrongful acts by one party over another are typically not as clear-cut as one person threatening the other.  The improper conduct is usually more subtle and subversive and may occur over an extended period of time.   In most cases the issue as to whether a person’s testamentary plan is the result of undue influence or improper conduct is a question of fact to be determined at a trial. Continue reading

The New York Probate Lawyer Blog contains numerous posts regarding Article 81 Guardianship proceedings. These cases are started when a person files a petition with the Court alleging that an individual is incapacitated and needs the appointment of a Guardian to assist with the individual’s affairs. Typically, the petition seeks the appointment of a Guardian for personal needs and for property management for the alleged incapacitated person (“AIP”).

Since determining that a person is incapacitated and requires the appointment of a Guardian is a significant deprivation of a person’s individual freedom, the Courts are very diligent to make sure that the interests of the AIP are fully understood and protected. In most Guardianship cases the Court will appoint a Court Evaluator to investigate the issues concerning the petition and to prepare a report for the Court to review. Sometimes the Court will also appoint an attorney to represent the AIP in the case. Continue reading

Estates and Trusts are administered by fiduciaries. The Surrogate’s Court Procedure Act (SCPA) section 103 (21) identifies persons that are fiduciaries and includes such office holders as Executors, Administrators and Trustees. Such persons are obligated to act in accordance with duties and responsibilities as set out in the New York statutes such as the SCPA, the Estates, Powers and Trusts Law (EPTL) and the rulings of the various courts such as the Surrogate’s Court.

New York estate lawyers are familiar with provisions of the law that permit the Surrogate’s Court to remove a fiduciary when he breaches his obligations or is otherwise unfit to serve in such capacity. The New York Probate Lawyer Blog has published numerous posts regarding this issue which is of utmost importance in estate and trust administration. Initially, reference should be made to a number of laws in this area. SCPA section 711 is entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct.” This statute provides a number of grounds for the removal of a fiduciary which include dishonesty or otherwise being unfit to serve in such capacity. Another statute that deals with these matters is SCPA section 719 which is entitled “In what cases letters may be suspended, modified or revoked, or a lifetime trustee removed or his powers suspended or modified, without process.” Continue reading

Litigation concerning estate matters has been discussed in many posts in the New York Probate Lawyer Blog. The variety of Surrogate’s Court disputes sometimes appears endless. These matters include contested probate proceedings, as well as proceedings to discover and recover a decedent’s property from third parties who have wrongfully taken such property. Also, proceedings to remove an Executor or Administrator because of a breach of fiduciary duty are not uncommon.

Recently, a number of stories have been written concerning estate disputes that involve well-known individuals. These articles present good examples of the problems presented when an estate is in turmoil.  A post appearing in the on November 17, 2014 by Eriq Gardner is entitled “Court: Sherman Hemsley Won’t Be Dug Out From Grave.” As reported, Sherman Hemsley was a famous actor appearing in sitcoms as the character George Jefferson. Shortly before his death in July 2012, Mr. Hemsley signed a new Will in which he left his estate to his business manager/best friend. Although the Will was contested by Mr. Hemsley’s brother, the probate court found the Will to be valid. In the appeal, which the brother also lost, he asserted that Mr. Hemsley should have been buried in a different location and that the business manager should not have made this decision. The appeals court declined to order that Mr. Hemsley’s body be removed and found that the brother’s rights to decide where to bury Mr. Hemsley were extinguished. Continue reading

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