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rendered-300x107It is not uncommon that a person who dies was the subject of an Article 81 Guardianship proceeding prior to death.  The Guardianship statutes are contained in Article 81 of the Mental Hygiene Law.  A Guardian for personal needs and property management will be appointed where a person is determined to be incapacitated.  Incapacity is defined in MHL Section 81.02 and essentially requires that a person is likely to suffer harm because they are unable to provide for their personal or property needs and they cannot “understand and appreciate” their disability (81.02(b)).  It should be recognized that the guardianship provisions rely on an assessment of functionality, or the extent to which a person is able to handle activities of daily living, as opposed to a strict medical or psychological diagnosis.

On its face, it would appear that a determination of incapacity and the appointment of a Guardian would automatically result in a lack of testamentary capacity for such person to execute a Last Will and Testament.  However, such is not the case.  To begin with, MHL 81.29(b) specifically provides that, where a guardian is appointed, it is not conclusive evidence that someone does not have capacity to dispose of an estate by a Last Will.  There are additional considerations as well.

This issue arose in a recent Brooklyn estate case entitled Probate Proceeding, Will of Phylliscita Ismay Samuel, decided by Brooklyn Surrogate Bernard J. Graham on January 11, 2024.  In the Surrogate’s Court case, the Court was asked to grant summary judgment and deny probate to a Will, which was executed following a determination of incapacity and the appointment of a Guardian.  The party moving for summary judgment relied on this determination to seek the summary rejection of the Will.  The Court denied the motion and found that issues of fact existed requiring a trial.  The Court’s ruling included recognition that the determination of capacity in a Guardianship case is different from the testamentary capacity required to execute a Will.  Article 81 is a test of functionality while testamentary capacity involves just understanding a person’s property, the natural objects of one’s bounty and that the person is entering into a Will.

Guardianship-300x201Article 81 of the New York Mental Hygiene Law provides the various statutory provisions for a New York Guardianship.  Typically, the statute is utilized to obtain a guardianship over another person’s financial affairs and personal needs.  The subject of these proceedings is referred to as an alleged incapacitated person (“AIP”).

The procedures set forth in the statute require that a petition be filed.  MHL Section 81.08 entitled “Petition” lists the information which must be contained in the Guardianship petition including a description of the AIPs functional ability.  A key part of the Guardianship law is that a Court will need to be shown the ability of a person to handle various activities of daily living.  These activities include the ability of a person to engage in financial matters and also to handle personal needs such as seeking medical attention, and maintaining a safe and secure living environment.  Basic needs such as cleanliness and personal hygiene are important considerations.  A Guardianship ensures that a person who is functionally incapacitated and at risk is protected from harm.

The Guardianship statute is also very particular that a Court only impose the least restrictive control by a Guardian.  An AIP’s freedom and choice are a paramount consideration for protection by the Court.

Estate-Settlement-300x200The New York Probate Lawyer Blog has published many articles concerning estate settlement.  Factors that can affect a New York estate are enumerable.  In the first instance, a determination must be made as to whether a Last Will and Testament needs to be probated.  If no Will exists, than an intestate administration must be commenced.  Different aspects and procedures apply to these types of proceedings and the filings which are required by the Surrogate’s Court.  Also, the rights of potential estate beneficiaries are determined either by the provisions of a Will or the statutory inheritance directives in the Estates Powers and Trusts Law Section 4-1.1 entitled “Decent and distribution of a decedent’s estate.”

Another very important consideration affecting all estates concerns the issue of which jurisdiction’s laws control matters regarding estate administration.  The topic referred to is known as “domicile.”  Domicile is basically a determination of the place where a person or decedent has their primary home.  A person may have many residences but can have only one domicile.  This Probate Blog has published previous posts concerning this issue.

For example, a person who dies and has a New York domicile will have his estate controlled by the laws of New York, for the most part.  Determining a person’s domicile is not always easy.  Someone may have an apartment or house in New York and also Florida, or another state or country.  Domicile is a matter of where a person intends to have his primary home.  However, there are a number of independent factors which go into the determination, such as where a person filed local taxes, the location of their employment, where their car was registered and driver’s license was issued.

shutterstock_635914376-300x144There are many aspects to the settlement of a New York estate.  First and foremost, there needs to be a determination as to whether the decedent had a Last Will and Testament or died intestate without a Will.  The existence of a Will provides provisions for the distribution of a decedent’s assets.  Alternatively, when no Will is found, the New York intestacy statutes provide the provisions as to whom is entitled to receive the estate distributions.  The New York Probate Lawyer Blog has published many articles concerning the probate process and intestate administration.

Many times a decedent leaves assets which do not pass through his estate.  Instead, items such as joint bank accounts, or other jointly owned assets with rights of survivorship will be transferred by operation of law on death to the surviving joint owner.  Additionally, various assets may have a designated beneficiary such as life insurance and retirement accounts like IRAs and 401k plans.  Upon death, these items also are paid directly to the named beneficiary.

Problems may arise when a person designates a beneficiary of an asset and the designated beneficiary predeceases the decedent.  If there is no designation of a secondary or substitute beneficiary, then an issue arises as to who is the beneficiary of the asset.  If it is determined that there is no substitute payee, then the fund may end up as an estate asset to be controlled by a Will or the intestate statutes.

Kinship-blue-200x300The initial inquiry when a person dies is whether or not the decedent has a Last Will and Testament.  Where a Will exists, a probate proceeding is commenced in the Surrogate’s Court.  Assuming the Will is admitted to probate, the terms of the document control the appointment of an executor and the distribution of estate assets.  Will contests and other issues regarding jurisdiction may delay the probate process.

In situations where there is no Will, the procedure is to obtain letters of administration in an intestate estate.  The appointment of an administrator is controlled by Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration.”  Priority of appointment is given to the closest surviving next of kin, also known as distributees.  Distribution of the assets of the estate is also provided for the closest surviving distributees.  Estates, Powers and Trusts Law Section 4-1.1 sets forth the priority of distribution.  The New York Probate Lawyer Blog has discussed the many issues and aspects of both probate and intestate administration proceedings in the Surrogate’s Court.

One of the basic issues in any estate case is determining the identity of a decedent’s distributees.  Figuring out a person’s next of kin, particularly in an intestacy case, directly affects the appointment of the administrator and the distribution of assets.  Next of kin identity may be very hard to determine.  A decedent may not be survived by any close relatives such as a spouse or children.  Also, a person may not have had much contact with extended family for decades, and family members may reside in other states or countries.  Where kinship is unclear, the Court may need to engage in estate litigation and require a kinship hearing.  Since these matters often require testimony and family history documents such as death, birth and marriage records, a professional genealogist may be needed.

Estate-Administration-300x200The probate of a Last Will and Testament is essentially the procedure by which a Will is validated by the Surrogate’s Court.  The New York trust and estate laws contain many provisions which are intended to protect the sanctity of a Will and insure that the intentions of a decedent are carried out.

First and foremost are the provisions contained in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  This statute sets forth the various requirements for the signing of a Will.  There is a requirement that the Will be written, that there be at least two (2) attesting witnesses and that the Will be signed by the testator at the end.

The basic requirements found in the statute ensure that a decedent’s wishes which are expressed in the document are legitimately preserved.  When a person dies it is apparent that he is no longer around to certify and authenticate the dispositions that he set forth in the document.  The New York Probate Lawyer Blog contains numerous articles explaining and discussing the probate process.  New York probate and estate lawyers are familiar with the estate laws.

shutterstock_204507106-300x254One of the primary assets which may be owned by a trust or estate is real estate.  This asset may be in the form of residential real property or commercial property.  Also, other types of similar assets should be included in the discussion.  A condominium unit is real property but is typically in the form of a residential apartment.  A cooperative apartment, while appearing to be real estate, is, in fact, personal property.  The cooperative ownership is really shares of stock in a cooperative corporation, which entitles the owner to a proprietary lease to the apartment unit.

During the course of estate settlement, a fiduciary such as a trustee or executor or administrator will need to contend with issues surrounding the decedent’s ownership of these interests.  It may be that a property is occupied by a third party or family member who needs to be evicted.  Thus, estate litigation in the Surrogate’s Court or other Court may need to be commenced.  Another problem may involve discrepancies in the title of ownership and claims by third parties against the property interests.  Various liens in the form of judgments or unpaid taxes or unpaid mortgages may complicate the estate administration.

It is very common that the estate fiduciary will decide to sell the property interests and distribute the net proceeds to estate beneficiaries.  The ability of the fiduciary to sell property may be limited or constrained based upon the existence of a Last Will or the authority provided to a fiduciary by the Surrogate’s Court in letters testamentary or letters of administration.

TRUST-2-300x115There are many different types of trusts.  A trust may be created as part of the terms of a Last Will and Testament.  Such a trust is known as a testamentary trust.  In these cases, the testator incorporates the trust terms into the dispositive provision in a Will.  For example, a Will may provide that a dollar amount or percentage amount passing under a Will be given to a trustee to hold and administer according to the trust terms which are specifically set forth in the Will.  The language in the Will names the beneficiaries of the trust.  Provisions are usually made for alternate beneficiaries and for successor trustees.

A trust can also be created separate and apart from a Will.  This document also contains the various provisions designating trustees and beneficiaries.

Regardless of the type of trust, it is important that the trust document set forth with clarity the manner in which the trust property is to be paid or applied for the benefit of the trust beneficiaries.  Also, the powers or authority of the trustees should be specified.

Probate-300x201The probate process in New York can appear daunting to persons unfamiliar with the statutes and procedures relating to such matters.  In cases where a person dies and leaves a Last Will and Testament, the Will must be filed with the Surrogate’s Court in order to obtain the Court’s approval that the Will is valid.  Once a Will is admitted to probate, its provisions regarding the disposition of a decedent’s estate control estate settlement.  Where there is no Will, a person is deemed to have died intestate.  Whether an executor or administrator is appointed depends upon the existence of a Will.  The New York Probate Lawyer Blog contains numerous articles concerning estate settlement, Will probate and intestate administration.

As part of the probate proceedings, the petition filed with the Surrogate’s Court must identify all of a decedent’s distributees (next of kin).  These are the individuals who would have a right to receive an intestate share of a decedent’s estate if a Will did not exist.  Distributees must be given notice of the probate case since they have a right to challenge or contest a Will.  A Will Contest can be a very complicated endeavor.  There are various steps which take place which afford a person who wants to contest a Will the opportunity to obtain information regarding the drafting and execution of the Will.  Surrogate’s Court Procedure Act Section 1404 entitled “Witnesses to be examined; proof required” allows distributees to obtain certain discovery information including the deposition testimony of the attorney who drafted a Will and the attesting witnesses who were present at the Will signing.  In addition, various documents concerning a decedent, such as financial records and medical records, can be obtained and reviewed.

An important aspect of filing objections to a Will is that an objectant must have standing to do so.  Not everyone can file objections.  Surrogate’s Court Procedure Act 1410 entitled “Who may file objections to probate of an alleged will” requires that a person must have a financial interest which would be adversely affected by the Will in order to object.  This is a significant requirement.  A recent Suffolk County estate case decided by Suffolk County Surrogate Vincent J. Messina, Jr. on August 8, 2023 concerning the Estate of May Kelman a/k/a May R. Kelman, Deceased, reviewed this issue.

nycSurrogates-1The probate of a Last Will and Testament validates the provisions contained in the Will.  The various Will directions can take many forms.  There can be dispositions of specific dollar amounts to beneficiaries, as well as dispositions based upon a stated percentage or share of the estate or of all assets.  In addition, there may be directions to give a specifically identified asset to a specifically named beneficiary.  Estate settlement and the administration of an estate by the Executors is controlled by the various mandates found in a Will.

Specific dispositions of property may present issues in finalizing an estate.  As a general rule, an executor is not authorized to sell property that is specifically devised or bequeathed to a named beneficiary without authority from the Surrogate’s Court or authority set forth in the terms of a Will.  In the event a fiduciary needs to sell such specifically gifted property to pay estate expenses or other obligations, permission may be obtained from the Court.  It is interesting to note that Surrogate’s Court Procedure Act Section 1412 entitled “Preliminary letters testamentary” grants to a preliminary executor all of the powers of an administrator except that they do not have the power to sell or dispose of specifically devised or bequeathed property without the written consent of the person to whom it was gifted.

There may be situations during the course of estate administration where the restrictions regarding specific dispositions of property impact an estate.  Such a situation recently arose in a Bronx estate and was the subject of a decision by Bronx Surrogate Nelida Malave-Gonzalez in the Estate of Armstrong, decided on July 6, 2023.

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