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accounting-300x199A New York estate is administered by an Executor or Administrator.  An Executor is appointed when a Last Will is admitted to probate.  The appointment of an administrator occurs in a case when the decedent dies intestate without leaving a Will.

The job of the estate fiduciary encompasses many functions.  First and foremost, the decedent’s assets need to be discovered and collected.  This process may be time consuming but is very important.  If a fiduciary fails to properly protect and collect assets he may be held personally liable due to a breach of fiduciary duty.

Next, the estate fiduciary is responsible for handling all estate administration matters such as paying debts, claims, expenses and taxes.  This aspect of estate settlement can take a lot of time and effort.  Sometimes the settlement of debts and claims may involve estate litigation in the Surrogate’s Court.  Generally, the administrator or executor cannot settle an estate and make a distribution to estate beneficiaries prior to seven months after appointment without first resolving all estate claims.  If a distribution is made before the end of the seven-month time period, the fiduciary may be personally responsible to pay any open debts or claims.

shutterstock_571088005-300x200Many of the issues concerning estate planning, including the preparation of Last Wills, Living Wills, Health Care Proxies and Powers of Attorney involve the personal intentions of the creator of the document. For example, a Will should reflect the manner in which the testator desires or intends his assets to be disposed of at the time of death. Likewise, the identification of agents and the delineation of powers and directives in a Power of Attorney or Health Care Proxy is meant to show the principal’s desires concerning his property management and personal needs in certain situations that may occur.

However, the provisions in these documents, on their face, capture a person’s apparent intentions at the moment in time when the document is created. The enduring nature of the document, unless revoked or modified, effectuates such intentions years or perhaps decades after they were originally formed. An underlying question may be whether such recorded directives actually reflect what a person wants to happen at the time when the controlling document (i.e., a Will) becomes effective or put into use. If intentions have changed, the document is not a true representation of a person’s wishes.

A recent article written by Solangel Maldonado in Trusts and Estates dated April 27, 2020 entitled “End of Life Health Care Decision Making: Lessons for Wills, Trusts and Estates Law,” provides a review of an article written by Jane B. Baron that is to be published in 87 Tenn. L. Rev. entitled “Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making.” The essence of the above articles is a discussion of issues regarding whether a person’s intentions are, in reality, fluid and may change over time, thus, creating a possible need to seek alternative ways of discerning and giving effect to someone’s intentions at the time they are to be effectuated outside of a formal writing.

After a person dies, there is a need to settle the estate of the decedent.  If the decedent prepared a Last Will and Testament, then the Will needs to be probated.

The New York probate process can be complicated, especially if there is a Will Contest.  One of the most important initial steps in Will probating is determining the identity of the decedent’s next of kin, who are also known as distributees.  Surrogates’ Court Procedure Act (SCPA) section 103(14) defines “Distributee” as “any person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.”  The probate petition must contain information as to the names and addresses of the distributees since they are among the persons entitled to receive notice regarding the commencement of the case.  They also have a right to contest the Will since the distributees receive an intestate share of an estate if there is no Will. Service of process is important because the probate of a Will is not valid against interested persons who were not properly notified about the case.  The New York Probate Lawyer Blog has extensively discussed probate and Will contests in earlier posts.

A person filing a probate petition with the Surrogate’s Court needs to refer to SCPA section 1410 entitled “Who may file objections to probate of an alleged will”. Under this statute, if a person who is interested in an estate would be “adversely affected” if a Will is probated, such person may be entitled to file objections to the Will.  The statute must be examined carefully in each case to ascertain the identity of interested parties.  Estate litigation is complicated.  In addition to distributees, persons who may have received bequests in earlier Wills, but who are now disinherited in a later Will being offered for probate, may be necessary parties who must receive notice (a citation) in the proceeding.

Citation-300x200As a New York Estate Lawyer, I am frequently contacted by individuals who have received a paper from the Surrogate’s Court that is titled at the top with the word “CITATION.”  Most people are not familiar with the procedures involved in estate settlement or estate litigation cases or the requirements in the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA) regarding the giving of notice to other parties.

A Citation is similar to a Summons that is served on a party when a civil lawsuit is commenced. In a civil lawsuit parties are generally referred to as plaintiffs and defendants.  In the Surrogate’s Court, the references are usually petitioners and respondents.  A Citation is issued by the Court Clerk and indicates that some type of proceeding has been started in the Court.  This is typically the Clerk in the department of the Court in which the proceeding is filed.  For example, if a probate proceeding has been filed, then the probate clerk generally issues the Citation.

The Citation is the Court paper that is used to notify interested parties about the commencement of a case.  SCPA section 306 entitled “Citation” provides the various requirements regarding the information that the Citation must contain.  Among other items, it should identify the name and domicile of the person whose estate is the subject of the case.  It also needs to list the names of all the persons who are to be served with the paper.  Proper service of the Citation is essential since it allows the Court to obtain jurisdiction over all the parties to be served and to make a determination regarding the issues that may be presented.  The various sections of the estate laws must be carefully reviewed to learn the proper manner of service of the Citation.  Typically, personal delivery is needed for service on parties in New York while certified mail may be allowed for out of state respondents.

shutterstock_529928383-300x200The New York Surrogates’ Court is the judicial branch of the legal system that deals primarily with issues concerning a decedent’s estate.  These Courts are located in the various counties.  In New York City, the locations of the Courts are as follows:

  • New York County (Manhattan) Surrogate’s Court: 31 Chambers Street, New York, New York 10007
  • Kings County (Brooklyn) Surrogate’s Court: 2 Johnson Street, Brooklyn, New York 11201

Surrogates-Court-300x194A fiduciary is defined in Section 103(21) of the Surrogate’s Court Procedure Act (SCPA) as including an executor, administrator and trustee.  These fiduciaries have various obligations with regard to carrying out their duties and obligations.  To begin with, statutes such as Estates, Powers and Trusts Law (EPTL) section 11-1.1 entitled “Fiduciaries: Powers, Duties and Limitations” lists many of the powers that are granted to a fiduciary to use when administering an estate or a trust.

In addition to statutory powers, the document that defines the tasks which a fiduciary is responsible for completing, such as a Last Will and Testament or Trust, can provide additional powers or specific directions as to certain matters.

There are many occasions in which a fiduciary must exercise his judgment and make decisions regarding various matters.  For example, it may be necessary to sell estate or trust property and the fiduciary must decide whether the sales price is fair and appropriate.  In other situations, the administrator or executor must determine whether a certain investment should be made or whether a discretionary distribution from a trust to a beneficiary should occur and the amount of the payment.  In these cases, the fiduciary must act properly or else he will have breached his fiduciary duty.  A breach of fiduciary duty may result in the fiduciary being removed or even held personally responsible for financial damages in the form of a surcharge.  The New York Probate Lawyer Blog has published many articles regarding estate settlement and administration issues.  These matters often result in estate litigation or trust litigation.

stock-vector-blue-kinship-distress-rubber-stamp-1662322042-281x300When a person dies without a Last Will and Testament, he is deemed to have died intestate.  In these matters a petition must be filed with the Surrogate’s Court to have an Administrator appointed to handle estate affairs. A fiduciary is needed for estate settlement. To begin the process to have an Administrator appointed, reference needs to be made to a number of New York estate statutes.

To begin with, Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” must be reviewed to determine the identity of the individuals entitled to inherit the decedent’s assets.  As discussed in numerous posts in the New York Probate Lawyer Blog, the statute sets out a list of people who have priority rights to inherit, such as a spouse, children, grandchildren, parents and others.  The proof as to the right to inherit can be simple, i.e., the surviving spouse, or very complicated if the oldest living heir at law is a cousin or more remove relative.  Maternal and paternal family histories may need to be examined.

Another important statute is Surrogate’s Court Procedure Act (SCPA) section 1001 entitled “Order of priority for granting letters of administration.”  This law, also previously reviewed in this Blog, provides a priority list of the persons who are entitled to be appointed as the estate Administrator.  The priority list is essentially the same as the list of heirs in EPTL 4-1.1 except that in the list of distant heirs, such as a cousin, the appointment would typically be made to the local Public Administrator.

One of the most important aspects of planning a New York estate is having complete knowledge regarding the nature and value of the person’s assets.  The various financial accounts and property interests that are owned may seem straightforward upon initial examination.  However, a thorough review can be the difference between a well-planned estate and post-death problems.

As discussed on many occasions in The New York Probate Lawyer Blog, a Last Will and Testament controls assets that are in the name of a decedent alone.  Thus, a bank account that is titled solely in the name of a decedent will be part of the probate estate.  Similarly, such asset is to be distributed pursuant to the laws of intestacy where there is no Will.  However, many assets are owned or titled in different forms.  There may be joint assets with rights of survivorship, or assets held in the name of a decedent “in trust for” a named beneficiary or in a “pay on death” form for a named party.  These types of items are not controlled by the terms of a Will and are not subject to distribution by the laws of intestacy.  Thus, the type of asset ownership must be carefully examined so that the planning of an estate has the desired results.  A person may prepare and execute a Will expecting that assets are to be paid to a Will beneficiary when these assets, in reality, are titled to be transferred to someone else automatically upon death.

A very popular form of death transfer is provided for by Estates, Powers and Trusts Law (EPTL) section 7-5.2 entitled “Terms of a trust account.”  Pursuant to this statute, when a beneficiary of a trust account survives the depositor, the trust terminates and the title to the trust fund vests in the beneficiary “free and clear of the trust.”  EPTL 7-5.2(4).  This is the “ITF” type of account that most people, including estate lawyers, are familiar with.  However, if the beneficiary should die before the trust account owner-depositor, the trust terminates and the account funds remain owned by the depositor, clear of any trust.  EPTL 7-5.2(3).

It is commonplace for a person to propose and execute documents to create an estate plan in New York.  Recent posts in this blog have talked about various planning papers including a Last Will and Testament, Living Will, Living Trust and Power of Attorney.  In view of today’s online capacity, many individuals consider and actually write and execute their own papers without guidance from an attorney.  The New York Probate Lawyer Blog has recently talked about the possible issues that many arise from such a process.

An additional consideration regarding the execution of any Will or other document is the level of capacity or competency that the creator has when preparing and signing papers that have significant legal consequence.

A recent article written by Roxanna E. Hammett on March 26, 2020 entitled “The Estate Planning Attorney’s Role in Establishing Testamentary Capacity” and published at www.law.com/njlawjournal/2020/03/26, raises some interesting issues.  While the article relates to New Jersey law, the overall subject is applicable to New York Wills and the Probate Process.

As a result of the COVID-19 crisis, people throughout the United States and other countries are exceedingly concerned about their personal and financial welfare.  Among other matters, consideration has been focused on protecting one’s assets, as well as insuring that the assets are properly situated to be passed on to others in the event of a person’s demise.

As a New York estate attorney, I have witnessed this heightened sense of concern over the past decades in connection with the World Trade Center bombings, Hurricane Sandy and other emotionally charged events.  While the initial impulse is to rush to prepare a Last Will and Testament and Advance Directives such as a Power of Attorney, Living Will and Healthcare Proxy, it is important to take the time and proper forethought before rushing to assemble and sign what are significant legal documents.

I have just read a post on CNBC.com by Bryan Borzykowski dated March 25, 2020 entitled “Americans rush to make online wills in the face of the coronavirus epidemic” . The article notes that over the past couple of weeks, companies that produce online estate planning documents such as Last Wills have seen as much as a “143% week-over-week increase” in these services.  While the article notes that the use of such online services has grown over time and can be less expensive than retaining an attorney,  the article points out that problems may arise as to the validity and effectiveness of papers that are created without proper legal guidance.

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