New York Probate Lawyer Blog

June 28, 2023

A New York Administrator Can Evict a Family Member from Estate Property

There are many issues which a New York estate administrator may need to deal with. The basic function of an estate executor or administrator involves identifying and collecting assets and resolving claims and other obligations affecting an estate. The New York Probate Lawyer Blog contains many articles describing various aspects of estate settlement.

A decedent may own different types of assets. These may include financial accounts and business interests. However, one of the most common and valuable assets is a real estate residence. While the decedent’s house may be the most valuable item in an estate, a number of problems may exist regarding the property. For instance, there may be a mortgage which needs to be paid, or real estate taxes that are due. The property may need repairs in order to maintain its value and structural integrity. In many cases, an estate does not have sufficient assets to pay for such expenses. As a result, the property would need to be sold to satisfy these items. Also, real estate assets may need to be sold to be able to make payment of estate funds to various beneficiaries.

A major issue which often arises is that the real estate which is to be sold may be occupied by third parties or other family members. When this occurs, the administrator or executor must commence Court proceedings to obtain the eviction of the occupants. This Probate Blog has discussed this issue in previous posts.

June 12, 2023

A Parent Can Be Disqualified From Inheriting From the New York Estate of a Child

by Jules M. Haas

The New York estate laws contain provisions concerning the various relationships between family members. There are statutes concerning spousal rights and also inheritance rights relating to other family members. For example, a New York spouse has the ability to make a claim against the other spouse’s estate if they are disinherited. Estates, Powers & Trusts Law Section 5-1.1-A entitled “Right of election by surviving spouse” provides that a disinherited spouse can file a right of election to claim one-third (1/3) of a decedent’s net estate. The New York Probate Lawyer Blog contains many articles concerning a spouse’s right of election.

On the other hand, a person has an absolute right to disinherit any other person, including children. Children have no right to receive a share of a parent’s estate if a person leaves a child out of a Last Will and Testament or does not have a child as a beneficiary of an asset that passes by operation of law.

There are additional considerations where a decedent does not have a Last Will. Estate settlement and distribution will be controlled by the laws of intestacy. EPTL Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” sets forth the manner by which an intestate estate is to be paid. There is a priority among the decedent’s family members and a spouse and children are at the top of the list.

May 31, 2023

Oral Communications with a Decedent May Be Allowed to Prove an Oral Contract

by Jules M. Haas

Estate settlement may involve complex issues regarding a decedent. Many of the articles appearing in the New York Probate Lawyer Blog discuss issues concerning the probate of a Last Will and Testament or the appointment of an administrator of an intestate estate. Probate and administration proceedings can take many months and involve Will contests, kinship determinations and disputes regarding the qualifications of a possible executor or administrator.

It should be recognized that the appointment of an estate fiduciary is just one phase involved in settling an estate. Once a fiduciary takes office, there are many other issues which may need to be resolved. These matters may involve extensive Surrogate’s Court litigation or disputes which are filed in other Courts. Such controversies may involve claims against a decedent arising out of a business or creditor claims.

An interesting dispute emanating from an estate was recently the subject of a lawsuit in Manhattan Supreme Court. Castellotti v. Free was a lawsuit in which the decedent (the parties’ mother) died, leaving a substantial estate. Before death, it appears that the decedent’s son was involved in a divorce. The decedent, who disliked the son’s spouse and wanted to prevent the spouse from sharing in any part of the decedent’s estate, took part in an oral arrangement whereby the decedent changed her Will to leave her entire estate to her daughter. There was an oral agreement whereby after the divorce was completed, the daughter would transfer 50% of the mother’s estate assets and proceeds to her brother. While there were additional terms to the oral agreement, the 50/50 arrangement was the centerpiece of the oral contract. As can be anticipated, after the mother’s death, the daughter allegedly failed to comply with the oral agreement and failed to transfer estate assets to her brother. As a result, the brother commenced a lawsuit against his sister to enforce the oral agreement.

May 22, 2023

Disqualification of a New York Estate Fiduciary Requires a High Level of Proof

by Jules M. Haas

When proceedings are filed in Surrogate’s Court regarding a decedent’s estate, the primary focus is inevitably on the person who is, or is seeking to be, the estate fiduciary. In cases of intestacy, there may arise issues regarding the qualification of the individual seeking to be appointed as administrator. Similarly, if the decedent died leaving a Last Will and Testament, the person applying to be appointed as executor also must meet certain qualifications.

It is not usual for other family members or interested parties to file objections with the Court regarding the appointment of the petitioning party. These issues may also arise during the course of estate settlement where persons who are estate beneficiaries seek to remove an already-appointed fiduciary due to claimed wrongdoing or breach of fiduciary duty. Such alleged conduct can include loss or waste of estate assets, undue delay in settling estate affairs or conflicts of interest regarding the disposition of assets or inequitable treatment of beneficiaries’ interests.

In all of these types of cases, the Court is very cautious regarding the disqualification or removal of an administrator or executor. There is great preference afforded to the choice of a fiduciary, such as an executor, by a decedent. Also, there is a statutory designation as to whom has priority to be appointed as administrator of an intestate estate.

May 8, 2023

Equitable Adoption does Not Create New York Kinship Rights

by Jules M. Haas

There are many instances where a person dies intestate, without a Last Will and Testament. When this occurs, a decedent’s estate is distributed to his next of kin or distributees pursuant to the priorities established under Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.” The New York Probate Lawyer Blog contains many articles concerning intestate estates and the appointment of administrators in these cases.

Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” sets out the persons who are entitled to be appointed as estate administrator when there is no Will. Of course, if a person leaves a Will, the Will provisions provide for the appointment of executors which typically negates the need to rely on SCPA 1001 for the appointment of a fiduciary. Preparing a Will which then is probated avoids some of the issues in Surrogate’s Court relating to intestacy. The presence of a Will also may facilitate estate settlement.

When there is no Will and the identity of a decedent’s distributees are unknown at the outset, generally, the Surrogate will appoint a local public official called the Public Administrator to administer the decedent’s estate. This may also occur when the closest known next of kin are cousins or more distant relatives. While kinship issues may arise in probate proceedings, usually there is a nominated executor who can handle estate affairs while the kinship issues are determined.

April 26, 2023

Turnover Proceedings in the Surrogate’s Court May Be Dismissed if Untimely

by Jules M. Haas

The process of administering an estate in the Surrogate’s Court may involve numerous proceedings. Initially, it may appear that only two main proceedings exist when a person dies. One type of proceeding is called probate. This situation arises when a person leaves a Last Will and Testament. A Will must be admitted to probate in order for its provisions to take effect.

Another type of proceeding is known as administration. This occurs when a person dies intestate – without leaving a Will. In these cases, the decedent’s next of kin are designated in the estate laws to receive a share of the estate.

While these two proceedings dominate what is typically viewed as an estate case, there are numerous other proceedings which may occur in Surrogate’s Court. For example, a person may commence a proceeding to compel a third party to file a Will with the Court. Also, before an estate is settled, there may need to be a kinship proceeding to determine a decedent’s heirs. Kinship cases can take place inside both probate and intestate administration matters. Additionally, an accounting proceeding may be needed to finalize an estate and determine the shares of an estate to be distributed.

April 17, 2023

Spousal Inheritance Rights Can Be Waived by a Prenuptial Agreement

by Jules M. Haas

A very common aspect in New York estate settlement and estate litigation concerns the rights of a surviving spouse. The New York Probate Lawyer Blog has published numerous posts concerning spousal rights and decedent’s estates.

Estate lawyers in New York are aware that state statutes such as the Estates, Powers and Trusts Laws (EPTL) and the Surrogate’s Court Procedure Act (SCPA) provide a surviving spouse with certain preferential rights. For instance, if a person dies intestate without a Last Will and Testament, EPTL Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides that a surviving spouse receives the first $50,000.00 of the estate and fifty percent (50%) of the balance of the estate to be distributed. Also, if a decedent leaves a Last Will but fails to provide for a spouse, EPTL Section 5-1.1-A entitled “Right of election by surviving spouse” allows a disinherited spouse to elect to receive one-third (1/3) of the estate. This election includes assets defined as testamentary substitutes which include items such as joint assets.

Spousal rights are provided in other areas such as estate tax. For both New York and Federal estate tax, generally, all assets left to a surviving spouse are subject to a full marital deduction and not subject to estate taxation.

April 3, 2023

New York Probate Requires Compliance with Statutory Requirements

by Jules M. Haas

Estate planning in New York can include the preparation of a number of documents. A person may create a Last Will and Testament, a Power of Attorney, a Living Will, a Living or Grantor Trust and a Health Care Proxy.

The most basic paper which should be considered is the Last Will. This is the document which sets forth the testator’s intentions regarding the disposition of the probate estate. It should always be kept in mind that a Will controls the disposition of assets held in a decedent’s name alone. Assets which are transferred by operation of law such as joint assets are not controlled by the Will provisions. The same concept applies to items such as life insurance or retirement accounts which may be paid on death to designated beneficiaries.

The New York Probate Lawyer Blog has published many articles regarding the preparation and probate of Wills. There have been numerous blog posts concerning the statutory requirements for signing a Will. These requirements are contained in Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”

March 20, 2023

The Provisions of a New York Will Can Only be Reformed by the Court if Found to be a Mistake or Create a Negative Tax Result

by Jules M. Haas

Estate planning in New York is important for the proper disposition of a person’s assets. Planning an estate encompasses a broad array of considerations. The New York Probate Lawyer Blog has published many articles on this topic. Initially, the preparation of a Last Will and Testament is the central document when creating a plan. A Will disposes of assets that are owned by a testator at death in his name alone. Thus, assets which pass automatically to others by operation of law such as joint property or items which have designated beneficiaries such as retirement accounts, life insurance or other pay on death funds, are not generally controlled by the terms of a Will as long as the beneficiary survives a decedent.

In view of various rules regarding property disposition, it is imperative that any estate plan take into account the ownership and title of assets which are intended to be disposed of under a Will. A recent Manhattan estate case, decided by Manhattan Surrogate Rita Mella on February 23, 2023 entitled Estate of McAulay, demonstrates the issues that may arise when a decedent’s asset ownership conflicts with the provisions of a Will.

In McAulay, the terms of a Will provided for equal distribution of a portion of the decedent’s residuary estate to four (4) individuals. At the time of death, the decedent owned certain California real estate with one of the beneficiaries as joint tenants. As a result, the California property passed to the joint owner by operation of law outside of the Will. An issue was raised as to whether the value of the California real estate should reduce the amount of the share of the residue the beneficiary was to receive.

March 7, 2023

An Extension to File a Spousal Right of Extension May Be Based Upon Reasonable Cause

by Jules M. Haas

There are many different rights which appear in the New York Trust and Estate laws. The basic statutes concerning estate law and procedure are contained in the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA).

A surviving spouse of a decedent benefits from a number of provisions in the estate laws. For example, if a person dies intestate (without a Last Will and Testament), EPTL 4-1.1 entitled “Descent and distribution of a decedent’s estate,” provides that a surviving spouse is entitled to receive, essentially, one-half of a decedent’s estate if there are also surviving children. In the event no children are surviving, then the spouse has top priority and inherits the decedent’s entire estate.

SCPA 1001 entitled “Order of priority for granting letters of administration,” is another provision where a spouse has priority benefits. This statute provides that a spouse is to be appointed as the administrator of an intestate estate before any other heir. The New York Probate Lawyer Blog contains many articles discussing executors and administrators and estate settlement.