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All fiduciaries such as Trustees, Executors and Administrators must properly perform their duties.  When there is a breach of fiduciary duty, a Court can suspend the fiduciaries’ powers or remove them from office.

Revoking the appointment of a fiduciary is not easily accomplished.  The Courts typically respect a person’s choice of Executors or Trustees and try to follow the intentions in a Last Will or Trust.  However, there are circumstances when revocation and removal is warranted.  Also, a fiduciary has a right to a full hearing before being formally removed.  This involves discovery of information and testimony before the Court.

In a recent Brooklyn estate decided by Brooklyn Surrogate Margarita Lopez Torres on March 20, 2019 entitled Matter of Estate of Gadsden, the Court removed a Trustee of a Living Trust.  This case involved a proceeding under Surrogate’s Court Procedure Act Section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct”.  The statute sets forth specific grounds that would be a basis for removal.

It is important for a New York domiciliary to engage is proper estate planning.  A lot of time and effort usually goes into creating a Last Will, Living Trust, Health Care Proxy, Power of Attorney and other planning initiatives.  It is always a tragedy when a well thought out estate is thwarted by errors relating to ambiguous or defective Will or Trust provisions or defective execution procedures.

The New York Surrogate’s Courts are filled with cases involving Contested Wills.  Estate Litigation surrounding the preparation and execution of a Will not only disrupts the testator’s estate plan, it delays the settlement of an estate.

The New York Probate Lawyer Blog has discussed the requirements for executing a Last Will.  Statutory requirements are contained in Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.  When the guidelines of the statute are not explicitly complied with, the validity of the document may be questioned.  Unless a Will is validated by the Surrogate’s Court and admitted to probate, the provisions and dispositions in the Will are not mandated to be followed.  Even a slight variation can cause controversy.

Estate Planning in New York can include the creation of a number of different papers such as a Last Will and Testament and Living Trust.  Also, a person may prepare a Durable Power of Attorney, Living Will and a Health Care Proxy.

At the outset of the drafting of these papers, it is important for the creator to fully ascertain the nature of his assets and the manner in which title to them is held.  Also, the creator should carefully consider his intentions so that decisions can be made regarding the dispositions to be contained in the documents.   The New York Probate Lawyer Blog has discussed these matters in earlier postings.

The creator’s goal is to clearly and explicitly set forth his intentions and desires regarding his assets and his beneficiaries.  A Will or Trust may contain specific gifts of a designated amount of money.  There may be dispositions that provide for a beneficiary to receive a certain percentage of an estate or fund.  Percentages are a good way to dispose of assets since it may be difficult to determine a person’s exact monetary estate at death which may not occur for many years after the estate planning papers are prepared.

The settlement of a decedent’s estate involves numerous activities.  When a person is appointed as the Administrator or Executor of an estate, one of the most important fiduciary duties is to locate and collect the assets that were owned by the decedent.  In some estates this task can be uncomplicated.  If the decedent owned bank accounts, real estate or funds in  a financial institution which the Executor or Administrator was aware of, the various forms and transfer papers can be prepared to facilitate the liquidation and collection of the assets.

However, there are many estates where the identification and collection of estate assets is not so clear or simple.  There may be many difference issues that can delay or prevent recovery.  To begin with, it may be difficult to locate or identify estate property.  The decedent may have kept poor or confusing records.  Also, some assets may be held in on-line accounts or in the name of corporations or other entities in which the decedent had an interest.

Additionally, even where assets can be located, there may be disputes with third parties regarding ownership.  The New York Probate Lawyer Blog has posted a number of articles regarding the recovery of a decedent’s assets.

The initial steps that are typically taken with regard to estate settlement concern the appointment of a fiduciary.  The fiduciary can be an executor when there is a Last Will and Testament or an Administrator when a person dies intestate.

In order to be appointed by the Surrogate’s Court as a fiduciary a person must meet certain qualifications.   Surrogate’s Court Procedure Act (SCPA) section 707 entitled “Eligibility to receive letters” provides basic criteria for a fiduciary.  This statute states, in part, that a person is ineligible to receive letters if they are an infant, incompetant or a non-domiciliary alien.  Also, a felon is ineligible.  The letters that are referred to include Letters Testamentary, Letters of Administration and Letters of Trusteeship.  There is an expansive definition of “Letters” in SCPA section 103 (34).

While many individuals may be eligible to receive Letters and be appointed as a fiduciary, there may be additional qualifications that must be met to complete the appointment.  SCPA section 708 entitled “Qualification of fiduciaries” provides among other matters, that the appointee obtain a “bond” that may be required by the Court or under the law.  The New York Probate Lawyer Blog has discussed the issue of Surety Bonds in earlier posts.  There may be a requirement by the Court to obtain a Letters of Administration Bond.  This is very common.

Article 81 of the New York Mental Hygiene Law (MHL) sets forth the rules and procedures for the appointment of Guardians for an incapacitated person.  The statute’s title is “Proceedings For Appointment of a Guardian For Personal Needs or Property Management”.

The main focus of the statute is to protect individuals who are incapacitated.  Functionality is important to the Court in making its determination.  Whether a person can engage in activities of daily living such as personal hygiene, and handling routine financial matters is scrutinized by the Court.

In the typical Guardianship case a petition is filed with the Court which details the reasons upon which a Guardian for personal needs or property management should be appointed.

The preparation and execution of a Last Will and Testament is always an important part of estate planning.  A Will allows a testator to specifically provide for the disposition of assets to the individuals he wants to benefit.  A testator’s intentions can be clearly set forth.   The New York Probate Lawyer Blog has discussed the benefits and specifics regarding planning an estate in many prior posts.

It is particularly essential to create a Will when a decedent is survived by a non-marital child or children.  When a person dies intestate or without a Will his estate is inherited by his distributees (next of kin).  In a situation when there are children born outside of the marriage, the issue of kinship can get complicated.  Estates, Powers and Trusts Law section 4-1.2 entitled “Inheritance by non-marital children”, sets forth the rules to be followed in these cases.  The statute provides that a child born out of wedlock is the mother’s legitimate child, so that he and his offspring can inherit from her.

However, with regard to non-martial children of a father, such children can only inherit if they prove their kinship in a number of alternative ways.   One way is if there has been a determination of paternity.  Another possible form of proof is by a blood genetic marker test.  Also, paternity may be shown by clear and convincing evidence that the father openly and notoriously acknowledged that the child was his.

Estate Planning in New York involves a number of items to be reviewed.  Most individuals initially approach planning by determining how their estate is going to be distributed.  Thus, decisions are made as to various bequests that are to be provided in a Last Will.  A simple bequest may be a specific dollar amount, say $5,000, to be given to a named individual.  There may also be a devise of a certain interest in real estate to a designated individual.  Other types of dispositions may include creating a trust for a minor child or a Supplemental Needs Trust for a person under a disability.  Also, there can be residuary dispositions to individuals or even charities whereby the balance of an estate is disposed of.

However, before the dispositions in a Will can be determined it is imperative to determine which assets are to pass under a Will as part of the probate estate.  The New York Probate Lawyer Blog has published many articles concerning estate planning and property ownership.  If an asset passes by operation of law, such as a joint bank account, or the asset has a beneficiary designation such as life insurance, then the asset is not controlled by the Last Will.  As a result, there may not be sufficient assets passing under a Will to satisfy the various bequests and dispositions set forth in the Will terms.

As can be imagined, it is very important to understand how assets are owned so a determination can be made as to how they are to be disposed of at death.  This issue was recently shown in a recent Manhattan estate case decided by New York Surrogate Rita Mella on May 23, 2019, entitled in Matter of Estate of Watson.  This case involved a cooperative apartment owned by two individuals, Watson and Vicic, life partners.   They died within a year of each other and a dispute arose between their estates as to the ownership of the cooperative and entitlement to the net sales proceeds.  Watson died intestate without a Will and Vicic died testate with a Will.

Contesting a Will in New York is a complicated matter.  There are a number of Statutory and Court prescribed rules that control these proceedings.  The New York Probate Lawyer Blog has published numerous articles concerning Will Contests.

When someone is challenging the validity of a Will, essentially they are asserting that a basic requirement of an enforceable Will is lacking.  Many references have been provided in this Blog to Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”, which sets forth the requirements for executing a Will.  This statute mandates that there be at least two (2) attesting witnesses and that the Will be signed at the end of the document.  One of the main Will Objections that is typically interposed is that the document was not properly executed.  Cases abound where there are issues created when the paper is not signed by the testator in the presence of a witness or the witnesses do not recall whether the testator identified the paper as a Will.

Additional grounds for Objections to a Will include undue influence, fraud, lack of testamentary capacity and coercion.  Sometimes forgery is alleged.  Whatever the reasons are for claiming the Will is invalid, it is important to recognize that most Will Contest cases are determined based upon the information obtained during the document and deposition discovery phase of the case.  During discovery the attesting witnesses and the attorney who drafted the Will and supervised its execution are required to give pre-trial testimony and turn over relevant documents.

New York estate settlement involves many different types of rules and statutes.  When a person dies the first question to be asked is whether the decedent had a Last Will and Testament or whether he died intestate.  Once this fundamental issue is established either a probate petition or a petition for Letters of Administration can be filed with the Surrogate’s Court.

The New York Probate Lawyer Blog has published numerous articles concerning the need to provide the Court with all the names and addresses of a decedent’s next of kin.  It is not uncommon for kinship information to be missing or difficult to obtain.  Sometimes the services of a professional genealogist are needed to track down missing heirs.  Also, the Surrogate’s Court may require that a kinship hearing be held to determine the status of individuals claiming to be a decedent’s distributees

While finding lost heirs is important, there are situations when determining the status of a possible decedent arises.  The problem is showing whether this person is alive but just avoiding contact, or whether, in fact, the person is deceased.  During this period of uncertainty, the missing individual’s affairs and assets are in limbo and not being attended to.

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