New York Probate Lawyer Blog

April 17, 2020

How Can a New York Executor or Administrator Obtain Direction From the Surrogate’s Court

A 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.

April 14, 2020

When New York Kinship Proof is Needed to Act as an Administrator

by Jules M. Haas

When 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.

April 9, 2020

Do You Know the New York Rules Regarding Bank “In Trust For” Accounts

by Jules M. Haas

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).

April 7, 2020

Why You Should Consider a Person’s Ability to Execute a New York Will

by Jules M. Haas

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.

April 3, 2020

What You Should Know About Online And Virtual Wills in New York

by Jules M. Haas

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.

April 1, 2020

Information About Settling A Case In New York Surrogate’s Court

by Jules M. Haas

There are many different proceedings in the Surrogate’s Court. Such matters include the following: probate proceedings, administration proceedings, accounting proceedings, and kinship hearings to name a few. It is not uncommon in these cases for there to be estate litigation or controversies regarding the issues being presented to the Court. For example, when a Last Will and Testament is being offered for probate it is possible that an interested party may contest the Will.

Similarly, when a person dies intestate and someone files an administration proceeding to be appointed as the estate administrator, questions may arise as to the kinship of the decedent. There may even be a necessity to hold a kinship hearing to resolve this question. There may also be a dispute as to which family member should be appointed as the administrator. The New York Probate Lawyer Blog has posted many articles regarding probate and administration matters and various types of Surrogate’s Court litigation.

The vast majority of contested and litigated matters in the Court are ultimately settled between the interested parties. New York Civil Practice Law and Rules Section 2104 entitled “Stipulations” contains requirements for stipulations to be enforceable. Settlements are favored by the Court and are usually advantageous to the individuals involved in a case. There are many reasons that favor a negotiated settlement. First and foremost, the outcome of litigation is typically uncertain. Therefore, rather than risk an all or nothing approach, each side ultimately accepts a resolution that provides them with a benefit although somewhat less than what might have been received if the case was ultimately won. This avoids the risk of a total loss. Also, Court proceedings can be exceedingly lengthy. The time for a matter to progress through the judicial system can take years. Sometimes it is better to accept an early resolution rather than wait for an extended period of time to reach an uncertain result. Estate settlement may be delayed.

March 25, 2020

The First Things that an Executor or Administrator Should Do

by Jules M. Haas

All of a sudden you are asked to be the Executor or Administrator of an estate. Most people have never acted in such a capacity and do not have any experience as to the responsibilities and tasks that lie ahead. They may be reluctant or even afraid to accept the appointment. While taking on this role may appear to be daunting, moving forward one step at a time with proper information is the best way to proceed. Here are a few initial suggestions.

Do Some Research And Seek Professional Guidance. It never hurts to research the internet or other sources to learn about the role of an Administrator or Executor. An Administrator is appointed when a person dies intestate without a Will. An Executor is someone who is nominated in a Last Will and Testament. The appointment becomes official after the Will is admitted to probate. Other family members and friends may have been appointed in past matters and they can provide some insight. Internet sources such as The New York Probate Lawyer Blog contain many articles explaining estate issues. Also, Estate Lawyers can provide invaluable guidance and insight into the Surrogate’s Court process and how a fiduciary is appointed and estate settlement takes place. I speak with many people each week regarding and discussing these issues.
Understand The Need for An Estate Fiduciary. The fiduciary is basically the Chief Officer for an estate. He or she collects the estate assets, pays the bills, taxes and expenses and ultimately distributes the assets to the estate beneficiaries in accordance with the estate laws and documents. There are numerous fiduciary duties and obligations. If the decedent owned real estate such as a residence, the fiduciary may need to sell the house and pay off a mortgage. Bank accounts owned by the decedent need to be closed and an estate bank account must be created. The decedent’s affairs cannot be resolved without proper administration. I handle all of these matters with my clients.

March 18, 2020

Estate Attorney Jules Haas Remains Available 24/7 During COVID-19 Pandemic

by Jules M. Haas

I have published the New York Probate Lawyer Blog for many years with the goal of providing the internet community with New York Estate Planning, Probate, Surrogate’s Court and Guardianship information. My blog, along with my website, contains hundreds of pages of helpful data obtained over my 40 years of representing clients in these areas of the law.

The COVID-19 pandemic presents a brand-new experience for me and for my clients and the internet community. However, despite being temporarily unable to physically go into my midtown Manhattan office, I am ready, willing and able, as always, to provide free consultations and formal representation to assist with matters that are very personal and important to clients and the community. Do not hesitate to call or email me.

Over the years I have helped countless individuals and families prepare their estate plans, probate a loved one’s Last Will, obtain an Administrator for an intestate estate, establish kinship, contest a Will and obtain a Guardian for an incapacitated person.

March 11, 2020

The Interesting Intersection Between New York Estates and Guardianship Cases

by Jules M. Haas

One tends to view New York Estate cases and Guardianship cases as completely separate matters. In an Estate, a person dies, and his Last Will and Testament is probated, or an administration proceeding is needed for an intestacy. In contrast a Guardianship proceeding is commenced while a person is alive. The goal is to have a Guardian appointed for the person and property of someone who is incapacitated. The New York Probate Lawyer Blog has published many articles concerning both Estate and Guardianship issues.

As an Estate and Guardianship attorney for 40 years I have encountered many situations where Guardianships and Estates intersect. In fact, the coalescing of these matters is rather common. For instance, a person may become incapacitated and require the appointment of a Guardian. Article 81 of the Mental Hygiene Law provides the statutory requirements for such appointment. Among the issues that may be faced in the case is the protection and control of the incapacitated person’s property. There may be concerns about transfers of a person’s assets that were improper due to undue influence or the abuse of a power of attorney. Guardianship cases often involve concerns regarding elder abuse. A Court appointed Guardian can bring a turn-over proceeding to recover assets that were wrongfully transferred at a time of incompetence.

These very same issues are often faced in Estate litigation after a person dies. An Estate fiduciary, such as an executor or administrator, can bring a turn-over proceeding to re-claim assets that were improperly transferred during the decedent’s lifetime or are withheld from the Estate. It is common that these Court disputes are transferred from Guardianship litigation to Estate litigation after death. I have seen this occur on many occasions. It is interesting to know that the Guardianship Court has the power to revoke or void transactions it finds to be improper. The Court can even revoke a power of attorney or health care proxy that it finds to have been executed at a time when a person did not have the capacity to sign. However, a Guardianship Court may not revoke a Last Will and Testament. The validity of a Last Will can only be challenged in a Will Contest in the Surrogate’s Court after a person dies. I have handled many of these Will Contest cases. It often appears that the disputes that take place in the Guardianship Court are just the beginning of the contested Will matters that are fought in the Surrogate’s Court after the incapacitated person dies. Many times the evidence from the Guardianship case is used in the Estate battles.

March 4, 2020

New York Estate Planning and COVID-19 – DO NOT STRESS

by Jules M. Haas

New Yorkers, as well as people throughout the world, are dealing with the health and financial effects of the COVID-19 pandemic. As in many past emergency and life-changing situations, thoughts are focused on a person’s future well-being. In particular, having practiced in the New York trusts and estates and estate planning area for 40 years, I have encountered similar environments created by events such as 9/11 and Hurricane Sandy.

This article is meant to provide some reassurance and guidance going forward. As I have talked about in many posts in the New York Probate Lawyer Blog, preparing an estate plan is important. Such a plan, which should include advance directives, provides a documentary guide for the disposition of assets upon death and for life-time, health care and financial management. These documents include a Last Will and Testament, Living Will, Health Care Proxy, Living Trust and Power of Attorney.

If such a plan has not been instituted, the time to consider and implement these papers can take place going forward. If there is an emergency situation call my office now and we can attempt to assist.