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Probate-300x201The New York Probate process is utilized in order for a Last Will and Testament to be admitted to probate.  When this procedure is successfully completed, the Surrogate’s Court issues a Decree which essentially validates the provisions of a Will.  The Probate Decree also usually provides that letters testamentary should be issued to the proponent of the Will which is typically the person designated in the document to be the Executor.  Letters testamentary is the paper which sets out the authority of the Executor to handle estate affairs such as the collection of assets, payment of debts and claims, and filing of estate tax papers.  The executor has the fiduciary responsibility to settle the estate.  The New York Probate Lawyer Blog has published many articles regarding the requirements to probate a Will.

As discussed in previous blog articles, the primary document submitted in this process is the probate petition.  Forms of the petition can be found on the internet as part of the official New York Surrogate’s Court forms.  The petition requires that certain information be provided to the Court.  This data includes identification of the decedent, the petitioner, the date of and witnesses to the Will.  Additionally, the petition requires that the names and addresses of all of the decedent’s distributees (next of kin) be listed, as well as the information regarding the persons named in the Will.  This listing of all of the interested parties provides the Court with assurance that everyone who is involved with the Will has notice of the probate matter and that the Court can secure proper jurisdiction over all parties.

It is not uncommon that one or more of the interested parties is incapacitated or incompetent to represent their own interests.  A person may be a minor or suffering from a condition such as dementia.  There is a separate paragraph in the probate petition to provide the details regarding such person under a disability.  In these cases, the Court has the ability to appoint someone, known as a Guardian ad Litem, to represent the interests of the disabled person in the probate case.  The Court typically appoints an attorney to represent the parties’ interests.  The New York Civil Practice Law and Rules Section 1201 provides that infants can be represented by a Guardian ad Litem as well as an adult who does not have the capability of defending or prosecuting his rights.  Of course, if the person already has a Court-appointed Guardian, the Court may allow such appointee to represent their interests.

shutterstock_571088005-300x200In order for a Last Will and Testament to be admitted to Probate, the Surrogate’s Court must be presented with all of the papers needed to satisfy the requirements of the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act.  The document which initiates the probate process is the Petition for Probate.  This paper contains detailed information regarding the decedent, the Last Will, an estimate of the estate value, the names and addresses of the decedent’s distributees and the persons named in the Will.

The New York Probate Lawyer Blog has published many articles concerning the requirements for probating a Will.  EPTL Section 3-2.1 entitled “Execution and attestation of wills” sets forth the mandated requirements for the due execution of a Will.  Prior to the COVID pandemic, the execution of a Will prepared and supervised by an attorney was a relatively straightforward process.  In short, the attorney, the attesting witnesses and the testator would gather together and have the various signatures applied along with a notary for a witness affidavit.  However, due to COVID this social interaction was prevented and New York passed certain legislation which allowed for remote execution of Wills.  However, the remedial statute presented explicit guidelines which, if not complied with, may compromise the validity of the Will.

A recent Queens estate case decided by Queens Surrogate Peter Kelly on February 23, 2022 entitled Estate of Holmgren dealt with the probate of a COVID rule Will.  In Holmgren, the Court reviewed New York Executive Order (202.14) which allowed remote execution.  This Order, as found by the Court, did not replace the requirements of 3-2.1.  Instead, the Court noted that the Order allowed the “use of audiovisual technology to satisfy the ‘presence’ requirements contained in the statute.”  The Surrogate went on to review in detail the various rules in the Order which needed to be followed to allow a COVID-type Will execution to form a basis for admitting a Will to probate.

Estate-Settlement-300x200Whether a decedent dies intestate without a Last Will and Testament, or with a Will, the retention of an experienced estate attorney can be essential to settling an estate efficiently.  In the case of intestacy, a proceeding to obtain letters of administration will be required to collect assets that are held in the name of the decedent.  A petition for letters of administration requires that all of the decedent’s distributees (next of kin) be identified by name and address.  In many cases, the identity and location of distributees is unknown.  An experienced estate lawyer is familiar with the process of locating unknown heirs and retaining the services of professional genealogists when needed.  Obtaining an Order from the Surrogate’s Court to allow the publication of a Citation for unknown distributees requires a demonstration of a due diligence search.

An attorney can be an essential part of the process in completing kinship issues in these situations.  Sometimes representation in a kinship proceeding may be needed.

As to probate proceedings, the probate process can be complicated.  There are many aspects to having the Surrogate’s Court admit a Will to probate.  A probate attorney is able to examine a Will to see if it was executed properly according to the estate laws.  Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides the requirements for executing Wills.  Additionally, persons who are dissatisfied with Will provisions may file a Will contest to challenge the validity of the document.  A probate lawyer is familiar with procedures that occur in contested Will cases.  These include dealing with issues such as undue influence and testamentary capacity.  Also, deposition testimony of the attesting witnesses to a Will and the attorney who drafted the Will is part of the Will contest process.

shutterstock_94407685-300x200The process of determining the identity of assets which belong to an estate is a fundamental responsibility of an executor or administrator.  In most cases it is easy to locate a decedent’s bank or financial accounts or real estate.  There are typically statements or deeds or other documents which clearly show the ownership of the asset.  Also, account balances or real estate valuations are available on a routine basis.  Most fiduciaries appointed by the Surrogate’s Court can complete the asset investigation process without much delay.

However, there are numerous instances where asset identification and collection can be complicated and involve estate litigation.  The New York Probate Lawyer Blog has published many articles concerning assets and estate settlement.  In situations where it appears that a third party is withholding assets which belong to an estate, the Surrogate’s Court Procedure Act provides some remedies.  SCPA Section 2105 entitled “Proceeding to compel delivery of property by a fiduciary which is claimed by another or others” allows a fiduciary to engage in discovery measures to ascertain if estate property is being withheld.  Deposition testimony and document review is available to assist in this investigation.  If it appears that assets of an estate are being withheld, the Court can hold a hearing to determine proper ownership.

Another Surrogate’s Court method of review regarding asset collection involves the accounting process.  Accounting proceedings require the administrator or executor to provide to estate beneficiaries all information regarding asset collection and expenditures from an estate.  This allows a beneficiary to examine whether estate assets have been properly collected and disposed of.  A recent Ulster County estate case entitled Estate of Oakley, decided by Ulster Surrogate Sara McGinty on February 9, 2022, concerned an interesting issue regarding estate asset ownership.  In Oakley, an executor had provided an accounting.  Among the contested items relating to the accounting were checks totaling $95,000.00 which appeared to have been signed by the decedent right before death.  These checks were made payable to the executor.  The executor claimed that the checks were given to him by the decedent as gifts.  In reviewing the alleged gift transactions, the Court found that neither of the two checks comprising the $95,000.00 total were credited to the executor’s bank account prior to the decedent’s death.  The Court pointed out that in order for an alleged gift to be completed, the subject of the gift needs to be delivered.  A gift in the form of a check becomes complete when a check has been deposited into and credited to the payee’s account during the lifetime of the donor / payer.  Where the donor dies before the completion of the deposit and the credit, a gift is incomplete.  Since the funds represented by the checks were not transferred, they remained part of the decedent’s assets..  The $95,000.00 was an estate asset.

20200522-Estate-Planning-300x200Estate planning in New York is important to preserve assets and insure a proper distribution after death.  The New York Probate Lawyer Blog has published many articles concerning planning an estate.  These articles have included discussions about Last Wills, Living Trusts, Health Care Proxies, Living Wills and Powers of Attorney.  It would seem that preparing a plan is fundamental.  There are also many articles in the Blog concerning Article 81 Guardianships.

Many individuals assume that if they are not considered to be wealthy that engaging in estate planning is a waste of time.  Nothing could be further from the truth.  In fact, as we have seen, even individuals who accumulate a fortune sometimes fail to adequately provide any planning.  As a result, their estates and families suffer tremendous post-death consequences.

A recent post at Kiplinger.com entitled “Prince’s Estate is a Royal Mess:  5 Ways You Can do Better”, dated February 5, 2022 and written by Jack R. Hales, Jr., J.D., describes the problems faced by the late pop star’s estate.  Apparently, Prince did not have a Will.  In New York, if you do not have a Will, the distribution of your assets is controlled by the laws of intestacy.  An intestate estate is distributed to a decedent’s next of kin in the order of priority set forth in Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.”  As pointed out in the article, a Will allows a person to determine their testamentary plan.  Additional considerations include dealing with minor children and the creation of trusts.  Of course, creating a Will allows a testator to specifically identify particular aspects of estate distribution and create detailed directions to deal with these matters.

shutterstock_548780089-300x200New York estate administration involves the collection of assets and the payment of the decedent’s debts and obligations.  Assets may include bank accounts, financial holdings in brokerage accounts, pension funds, 401(k) accounts and life insurance.  One of the major assets typically found in an estate is real estate.  This asset is usually the home where the decedent lived.

Among the many types of debts and obligations, there may be credit card balances, hospital or medical bills, car loans and other outstanding debt obligations.  The major source of a debt obligation is most commonly the unpaid mortgage balance on a decedent’s home.

In many cases, mortgage debt cannot be paid without selling the real estate against which it is filed as a lien.

shutterstock_96626974-300x225Estate planning in New York is important for many reasons.  Primarily, when a person plans their estate, they are ultimately creating documents and situating assets to reflect their intentions regarding the ultimate disposition of these items.  Nowadays, estate planning is often viewed as a broader topic and includes papers that are referred to as advance directives.  These would include a Power of Attorney, Living Will and Health Care Proxy.  The more traditional estate planning papers include a Last Will and Testament, and possibly a living revocable trust or even an irrevocable trust.  The New York Probate Lawyer Blog has published many articles relating to the various documents identified above.

Any type of planning document requires that the person creating the paper consider the selection of various types of fiduciaries.  These fiduciaries include executors, trustees and agents acting pursuant to a power of attorney or health care proxy.  It may also include the nomination of a guardian for a minor child.  In most cases, the appointment of a fiduciary is simple and the choice is typically a spouse or child or other close relative or friend.  However, there are many situations where the selection is not as clear cut and various considerations need to be taken into account.

One issue which should be analyzed is whether the proposed appointee is willing to accept the appointment.  Not everyone wants to accept the responsibility of being an estate executor or trustee of a trust.  It is always a good idea to ask the proposed fiduciary if they would accept the appointment.  This avoids having to find a replacement once a document comes into effect.  While a substitute appointment in the document is always advisable, there is no assurance the substitute would be available or want to accept the task.

Estate-Administration-300x200One of the most common questions that is raised following the death of an individual is whether there is a surviving spouse.  This is especially so in cases where a person dies intestate without leaving a Last Will and Testament.  In intestate estates, the decedent’s assets pass to his distributees or next of kin.  The persons who are entitled to inherit are specified in Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.”  Pursuant to this statute, a surviving spouse receives at least the first $50,000.00 and one-half of the estate if there are surviving children or the whole estate if there are no children.  As a result, being a surviving spouse provides a tremendous financial benefit along with other rights.  A surviving spouse also has priority to be appointed the estate administrator pursuant to Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration.”  The New York Probate Lawyer Blog has published many articles concerning estate administration and spousal rights.

There are many instances where two individuals cohabitate together for many years and essentially live their lives as if they were married.  Unfortunately, if there has not been a formal marriage ceremony as recognized by state law, a person’s inheritance rights may be in jeopardy, particularly in New York.

New York is one of the jurisdictions which does not recognize common law marriage.  As a result, if one of the individuals who engage in a non-marital relationship dies, the survivor will not qualify as a surviving spouse and cannot inherit from their deceased partner.  Of course, if the partner created a Will or left assets in a manner which passed directly to the survivor such as a joint bank account, the partner would inherit even though there was no marriage.

Probate-300x201A Last Will and Testament in New York must be admitted to Probate in order for it to become effective.  The probate process involves the filing of a petition with the Surrogate’s Court along with additional documents.  Persons who are identified as distributees (the decedent’s next of kin) must be notified.  This is typically accomplished through the service of a Court issued Citation.  Distributees have a right to contest a Will.  The New York Probate Lawyers Blog has published many articles concerning the probate and administration of estates and contesting a Will.

Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides the requirements for the proper execution of a Will.  In cases where the statutory steps are not complied with, an objection to a Will can be filed based upon lack of due execution.  For instance, two attesting witnesses are required.  If there are not two witnesses, a Will can be denied probate.

Other grounds for a contested Will include lack of testamentary capacity and undue influence.  While it may seem initially that a Will that is attorney supervised and executed in accordance with the estate law should result in a simple rejection of objections by a Court, that is not always the case.

shutterstock_1465659569-300x201Article 81 of the Mental Hygiene Law (MHL) contains the provisions regarding the appointment of a Guardian.  A Guardian can be appointed for personal needs and also for property management.  Generally, according to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment”, a Guardian is appointed after the Court determines that the alleged incapacitated person is incapacitated.  There needs to be clear and convincing evidence which includes a determination that the person is likely to suffer harm and that they do not appreciate or understand the nature of the disability that affects them.

I have represented individuals in many Guardianship cases throughout New York.  As a Guardianship lawyer, I am aware that a Court will want to see the extent to which a person can handle their activities of daily living such as personal health and care matters and financial transactions.  The New York Probate Lawyer Blog contains numerous posts regarding Guardianship issues.

One interesting aspect of Article 81 is Section 81.29 entitled “Effect of the appointment on the incapacitated person”.  Among this statute’s provisions is the authority for the Court to revoke, modify or amend any power of attorney, health care proxy, contract or conveyance made by a person found to be incapacitated.  By utilizing this provision, a Court is able to rectify transfers or delegations of authority made by a person who did not have the capacity to enter into the transaction at the time.  This provides an additional layer of protection for individuals and forestalls abuse.

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