New York Probate Lawyer Blog

July 1, 2020

The Real Estate Closing – An Estate Perspective

Many decedents’ estates contain assets in the form of real estate. A decedent may have owned a home or rental property or a commercial building containing a business. Such items are typically the most valuable items among the decedents’ assets.

If a decedent left a Last Will, such document may provide for the disposition of a specific parcel of real estate to a named person. When the Will does not contain such a provision or when a decedent dies intestate without a Will, the real property is part of the general estate. In most of these situations, the property is typically sold to provide for the payment of estate obligations such as an outstanding mortgage or the disposition of funds to a number of estate beneficiaries. The New York Probate Lawyer Blog contains many articles concerning estate administration.

The sale and closing of real estate by an executor or administrator is usually comparable to the process when a sales transaction is entered into among living individuals. However, there are a number of important aspects regarding estate closings that should be taken into consideration. Here are a few important items:

June 24, 2020

How Can an Estate Beneficiary Protect an Inheritance – Some Steps to Consider

by Jules M. Haas

As a Trusts and Estates lawyer in New York, I receive many inquiries from individuals who are concerned about recovering and protecting their estate inheritances. The administration aspect of an estate generally can be in one of two forms. There is a probate estate where a decedent dies leaving a Last Will and Testament. When there is no Will, the estate is the subject of an intestate administration. The New York Probate Lawyer Blog has published many articles discussing probate and intestacy matters.

When a person believes that a decedent named him as a beneficiary on an account such as a pay on death account or as a designated beneficiary of an asset such as life insurance, the beneficiary should contact the financial institution directly to obtain all details. Typically, the beneficiary needs to present a death certificate and complete an appropriate death benefit application or withdrawal form. These papers can be obtained and submitted directly to the bank, insurance company or other institution to claim the inheritance. There is no need to contact the estate executor or administrator since these types of assets pass outside of the probate or intestate estate.

In some instances, there may be disputes as to whether a proper beneficiary designation form was prepared or filed by a decedent. These matters may need to be resolved through estate litigation.

June 16, 2020

Who Should Act as the Estate Administrator and Why Does it Matter?

by Jules M. Haas

Estate planning in New York is important because it allows a person to create planning documents such as a Last Will and Living Trust. Advance directives in the form of a Power of Attorney and Health Care Proxy can also be made. While these papers reflect a person’s intentions regarding the disposition of assets and personal care, they also allow the selection of fiduciaries, such as Executors, Trustees and Agents.

In situations where a Last Will is not in place, a person dies intestate. As discussed in numerous posts in the New York Probate Lawyer Blog, an intestate decedent’s estate is distributed to his next of kin called distributees. While the determination of kinship may sometimes be complicated and require the services of genealogists, the selection of the estate Administrator may be equally challenging and contentious.

Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration,” sets forth the right of priority of persons to receive appointment as an administrator of an intestate estate. As can be expected, a spouse has priority, then children, and then more distant relatives. Invariably, problems arise when there are multiple candidates occupying a priority class such as children or brothers and sisters.

June 12, 2020

A New York Estate May Have Out-of-State Assets – Some Insights

by Jules M. Haas

A person who is a New York domiciliary typically has his estate administrated in the County Surrogate’s Court where he maintained his home. Domicile is a person’s primary home as opposed to numerous residences which may be used.

Whether a New York decedent has a probate estate or dies intestate without a Will, primary estate proceedings are filed in New York. However, it is not uncommon for a decedent to own various forms of property outside of New York. Administering such assets may be complicated and challenging.

Where an administrator or executor is appointed in New York, such fiduciary generally has the authority to access and collect all of the decedent’s personal property. For example, the New York executor should have no problem collecting bank accounts or other similar assets that are held in financial institutions in different states such as California. These institutions may require certain forms and certified documents to be presented but will recognize the authority of the New York fiduciary to close and collect accounts.

June 5, 2020

Did You Know That Estate Litigation is Usually Not For Federal Court

by Jules M. Haas

The forum for proceedings regarding a decedent’s estate is typically the Surrogate’s Court. Probate proceedings and requests for intestate administration are filed in the Surrogate’s Court in the county where the decedent lived. For example, if the person lived in Manhattan, the estate proceedings would be filed in the New York County Surrogate’s Court. This would be so even if the individual happened to die in a different location, say on vacation in another state or country. The New York Probate Lawyer Blog should be referred to for numerous articles regarding estate proceedings.

Sometimes a litigant may want to commence a legal action regarding an estate in Federal Court rather than the local New York Surrogate’s Court. However, initiating estate cases in Federal Court may be prohibited. This is due to a well-known Federal Court rule called the Probate Exception.

In order to utilize the Federal Courts, there needs to be a basis for the Federal Court to have jurisdiction. Basically, there must be a Federal question presented or diversity jurisdiction. However, even where diversity jurisdiction may exist, the Federal Probate Exception may preclude Federal Court involvement. This is what occurred in a recent case decided by Federal District Court Judge Kiyo Matsumoto on May 29, 2020 entitled McKie v. Estate of Dickinson.

May 29, 2020

Why Full Discovery is Required in a New York Will Contest – A Case in Point

by Jules M. Haas

Estate planning and creating a Last Will and Testament is important. However, during the planning process, attention must be given to the eventual probating of the Will. When a Will is admitted to probate by the Surrogate’s Court, the effect is to validate the terms and provisions in the document. At that time the executor is granted letters testamentary and can begin the estate settlement process.

The New York estate laws and procedures require that notice of the probate case be provided to the decedent’s heirs at law who are known as distributees. These persons have a right to object to the probate of the Will. The New York Probate Lawyer Blog contains many posts with information about probate and many other estate and guardianship issues.

A Will contest is a proceeding that involves extensive estate litigation. Similar to most types of controversies, the relevant law allows for extensive pre-trial discovery. Simply put, discovery allows each party to obtain documents and testimony from various sources for the purpose of discovering information and evidence to be potentially presented at a trial or other Court hearing.

May 22, 2020

Planning for the New York Non-Traditional Family – Some Considerations

by Jules M. Haas

Like most things in life, estate planning in New York comes in all different shapes and sizes. Each person has their own unique situation regarding assets and desires concerning advance directives and post-death distributions.

When reference is made to a so-called non-traditional family, the reality is that in today’s world, nothing is really non-traditional. However, the reference is important for at least calling attention to situations that require extra care and scrutiny to fulfill estate planning goals.

In a traditional sense, a person will plan for a wife and/or children who are persons that are considered to be next of kin. Thus, even if there was no Will or other planning documents, such persons would inherit or have other priority rights as primary heirs. However, when the intention is to benefit others such as unmarried domestic partners or friends, the lack of a properly prepared Will, Health Care Proxy or Power of Attorney can lead to unintended results. This is due to the fact that the unrelated friend or individual would generally have no statutory priority rights to make lifetime decisions or receive a post-death inheritance.

May 15, 2020

Can a New York Trust Evict Occupants from Trust Property – Some Important Points

by Jules M. Haas

One of the responsibilities of a fiduciary, whether an Executor, Trustee or Administrator, is to discover, administer and protect the assets of an estate or trust. When assets are in the form of bank accounts or other financial funds, these items can be transferred into a new estate or trust account and controlled thereafter by the fiduciary.

Many trusts and estates own different kinds of assets. One of the most valuable assets is real estate. This item may be in the form of residential property such as a single family home or even a condominium. There may also be vacant land or commercial property. A very common problem faced by a fiduciary is that a third party is occupying the estate or trust real estate without the right to remain there. Such improper occupancy can cause problems with the management of the real estate since access to the property may be restricted. Also, the presence of an authorized occupant may interfere with the sale of the real estate or lower its market value.

In these situations, the fiduciary usually can bring eviction type proceedings in the Surrogate’s Court or the appropriate landlord-tenant Court. I have represented fiduciaries and occupants in these eviction cases on many occasions. The New York Probate Lawyer Blog contains many posts dealing with real estate matters and also evictions.

May 12, 2020

Did You Know New York Executors and Administrators Need to Prepare Estate Accountings

by Jules M. Haas

A 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.

May 5, 2020

Understanding an Individual’s Intentions with Regard to Estate Planning and Advance Directives

by Jules M. Haas

Many 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.