Many estates in New York have assets that include real estate. The most common situation is that a decedent owned a single or multi-family home. Very often the home was the decedent’s residence at the time of death. Additionally, other family members may have been living in the home. The problem that is encountered is that the real estate residence needs to be sold or transferred as part of the settlement of the estate. The continued occupancy of the residence by family members can prevent the sale or transfer.
The New York Probate Lawyer Blog has discussed this issue in a number of earlier posts. There are a number of avenues that an estate executor or administrator can follow to seek possession of the property and evict the remaining occupants. A turn-over proceeding can be commenced in the Surrogate’s Court. Also, it may be possible to obtain an eviction in the local housing or Landlord-Tenant Court. These proceedings, whether brought in the Surrogate’s Court or the Landlord-Tenant Court, seek to have occupants removed from estate property. Continue reading
A person who is appointed as an estate Administrator or Executor is empowered to perform many tasks on behalf of a decedent’s estate. Generally, the fiduciary identifies and collects assets; resolves and pays the decedent’s debts and obligations; satisfies estate administration expenses such as estate and fiduciary income taxes; and provides an accounting and distributes the net estate to the beneficiaries. The New York Probate Lawyer Blog has published many articles describing and examining the estate settlement process.
Along with their administrative powers, fiduciaries also have many obligations sometimes referred to as fiduciary duties. In cases where there is a breach of fiduciary duty, the Surrogate’s Court can revoke the letters of appointment and remove a fiduciary from office. Continue reading
Will Contests in New York are part of a probate proceeding. When a Last Will is filed for probate, official notice must be given to the decedent’s distributees (next of kin). The distributees have a right to contest the Will. In the event the Will is found to be invalid the distributees would inherit the estate pursuant to the laws of intestacy.
The New York Probate Lawyer Blog contains numerous articles concerning the discovery process in contested probate proceedings. Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required” contains provisions that allow prospective Objectants to obtain documents and testimonial discovery before having to file formal Will Objections. Continue reading
Real Estate ownership by a decedent is commonplace. A person may have owned a family residence, or investment or commercial properties. Ownership interests may also appear in the form of cooperative and condominium units.
These types of assets constitute one of, if not the, most valuable estate asset. The administration and disposition of estate real estate is often the subject of controversies. The New York Probate Lawyer Blog has posted many articles regarding issues concerning real estate. Continue reading
Surrogate’s Court cases in New York are identified by a number of different proceedings. There are, for example, probate proceedings and intestate administration proceedings. There are also accounting proceedings in which the estate administrator and executor provides an account of his transactions to the interested parties who can approve or object to the account.
All of these types of cases require that interested parties be notified so that they can protect their interests. For example, in a probate case, the decedent’s distributees (next of kin) must be notified so that they have an opportunity to file objections to a Will. In an administration proceeding, the decedent’s next of kin need to be identified since they are entitled to share in the estate distribution. Continue reading
An Estate fiduciary such as an Executor or Administrator is responsible for settling a decedent’s estate. A New York City estate lawyer often refers to Estates Powers and Trusts Law (EPTL) Section 11-1.1 which is entitled “Fiduciaries’ powers”. Among the authority provided by the statute is the power to settle claims against a decedent’s estate. The payment of estate creditors is a primary obligation of the fiduciary which must be completed before any distributions can be made to beneficiaries. If a fiduciary distributes estate assets to beneficiaries before satisfying creditor’s claims, the administrator or executor may be held personally liable to satisfy those debts if the estate does not have sufficient assets remaining on hand to do so.
It is very common for a person to die with unpaid debts or creditor claims. The most common types of unpaid items include credit card balances and mortgages. In a recent article posted at MarketWatch.com by Christine DiGangi dated May 29, 2017 entitled “What happens to your debt when your die?”, it was reported that 73% of decedents had some type of debt at death. Continue reading
The planning of an estate in New York has many benefits. The primary goal is to establish documents such as a Last Will, Living Will, Health Care Proxy, Power of Attorney and a Living Trust that provide a definite and unambiguous expression of a person’s desires. With regard to a Last Will, the document should be a careful statement regarding the disposition of estate assets to named beneficiaries. New York Estate Lawyers assist individuals with the drafting and execution of these papers.
As discussed in many posts in the New York Probate Lawyer Blog when a person dies intestate (without a Will), State statutes, such as Surrogate’s Court Procedure Act Section 4-1.1, determine who is to inherit the estate property. Continue reading
An estate executor or administrator has many obligations with regard to an estate. The New York Probate Lawyer Blog has discussed in many posts the various powers that an estate fiduciary can exercise. These powers include the right to collect assets and pay expenses.
However, in addition to the powers to be used to administer an estate, a fiduciary is responsible for various fiduciary duties. For example, an executor has a duty to treat estate fiduciaries fairly. Also, the executor owes a duty of loyalty to the estate and cannot engage in acts considered to be self-dealing. Such conduct might involve taking advantage of the estate to further the fiduciary’s personal interest. For example, New York City estate lawyers are aware that it would be improper for a fiduciary to purchase an estate asset for a price below the fair market value. When an administrator or executor acts improperly, such conduct is viewed as a breach of fiduciary duty. Continue reading
A Will Contest in New York has been the subject of numerous articles in the New York Probate Lawyer Blog. After a petition for the probate of a Will is filed, notice of the petition must be given to the decedent’s distributees. The distributees (next of kin) have a right to object to probate. In the event the Will is ultimately denied probate, the decedent’s estate is distributed according to the laws of intestacy. In such a case a distributee who was disinherited under the Will can receive his intestate share of the decedent’s estate.
When a distributee seeks to challenge a Will he can proceed to obtain information regarding the decedent’s testamentary capacity, the due execution of the Will and whether the Will was the subject of undue influence, fraud or duress. The initial phase of this discovery process is usually performed pursuant to Surrogate’s Court Procedure Act (SCPA) 1404. My blog has discussed this statute on many occasions. Pursuant to the provisions of this statute, the potential Objectants can obtain the deposition testimony of the attesting witnesses and the attorney who drafted the decedent’s Last Will. Also, documents concerning the decedent’s estate plan, finances and health status can be obtained. Continue reading
The creation and implementation of an estate plan requires the consideration of many factors. Reference is made to the New York Probate Lawyer Blog which contains many articles regarding the planning of an estate.
One of the essential elements in the planning process is obtaining a full understanding and inventory of assets. The reason such an examination is needed is to ensure that assets are transferred in a manner according to a person’s intentions. The primary function of a plan is to be certain that post-death dispositions to beneficiaries occur according to an individual’s desires. New York City Estate Lawyers are familiar with the rules and requirements regarding property dispositions. For example, a Last Will is going to control the disposition of assets that are owned by a decedent in his name alone. However, other assets such as jointly owned accounts or assets that have a designated beneficiary, are going to be paid directly to the joint owner or designee outside of the terms of a Last Will. Continue reading