New York Probate Lawyer Blog

November 20, 2019

Interesting Information about the Recovery of Estate Assets

One of the most important fiduciary duties of an Executor or Administrator is locating and recovering estate property. The assets of the decedent must be secured so that they can be distributed to estate beneficiaries. Assets are also needed to pay estate expenses such as deb

Sometimes it is difficult to collect the items that were owned by the decedent. This may be due to a number of factors. One issue that arises quite often is that assets are transferred to third parties shortly before death. This raises questions as to the validity of the transfer. It may be that the decedent lacked the capacity to enter into the transaction or was unduly influenced or the subject of a fraud. In all cases, the fiduciary is obligated to investigate the circumstances behind the transfer and, where appropriate, attempt to recover the assets for the benefit of the estate. This usually involves estate litigation in the Surrogate’s Court. The New York Probate Lawyer Blog has posted many articles concerning recovery of assets and estate litigation.

A recent Queens estate case decided by Queens Surrogate Peter Kelly on October 18, 2019 entitled Matter of Kokotos, provides a good example of the issues presented when there are pre-death transfers. In Kokotos the decedent owned an interest in a Limited Liability Company which owned real estate. Shortly before the decedent’s death, her son, by using a Power of Attorney with a Statutory Gifts Rider, transferred the decedent’s interest in the LLC to the son’s wife. Thus the entire real estate interest was not a part of the decedent’s estate at death.

November 13, 2019

It Is Important to File a Spousal Right of Election on Time

by Jules M. Haas

Inheritance rights in New York are mainly found in Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.” This section provides the priority of persons who have rights of next of kin to receive a share of a decedent’s estate when there is no Last Will and Testament. As can be expected, a surviving spouse and children have the primary rights when there is an intestate estate.

Estate Attorneys in New York are aware that there are additional estate laws that provide family rights. One of the statutes is EPTL 5-1.1-A entitled “Right of election by surviving spouse.” Pursuant to this provision, a spouse who survives a decedent can make an election to receive a one-third share of a decedent’s estate even if the survivor was entirely left out of a Last Will. Essentially, this statute prevents the living spouse from being completely disinherited. In contrast, a person has a right to totally disinherit children or any other relative or friend. Only spouses receive protection under the New York estate laws. The New York Probate Lawyer Blog has discussed spousal and other family kinship and inheritance issues in earlier posts.

In order to secure spousal rights under EPTL 5-1.1-A, a person must file a notice of election within six months after the date of issue of letters testamentary or letters of administration but no later than two years after the decedent dies. The statute provides for service of the notice on an estate fiduciary and for filing in the Surrogate’s Court. The Surrogate does have the discretion to extend the time for reasonable cause. However, the statutory time periods are typically strictly adhered to.

November 6, 2019

Information About Appointing A New York Executor – What you Need to Know

by Jules M. Haas

The Surrogate’s Court in New York is the judicial forum that appoints Executors and Administrators of an estate.

When a person dies and leaves a Last Will and Testament, the usual process is to appoint an Executor. The person who is to act as the Executor is named in the Will. Often a Successor Executor is also named.

The probate process requires that a petition for probate be completed and filed with the Court. This petition is usually completed and presented by the nominated Executor and requests that the Court admit the Will to probate. It also seeks to have Letters Testamentary issued to the petitioner.

October 30, 2019

New York Surrogate’s Court Confirms That Alterations To A Will Are Not Valid

by Jules M. Haas

When a person creates a New York Estate Plan, one of the most important documents is a Last Will and Testament. A Will is an instrument that controls the disposition of assets that are owned in the name of the decedent alone at the time of death. Assets that are owned in a different manner such as joint ownership or with a designated beneficiary pass automatically to the named party outside of the Will.

In order for a Will to be valid it must be executed in accordance with the statutory requirements provided in the New York Estate Laws. Estate lawyers know that the guidelines provided in Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements” must be strictly followed. If a Will fails to meet the tests of this statute, the Surrogate’s Court won’t admit the Will to Probate. The New York Probate Lawyer Blog has posted many articles regarding Wills, Will Contests and Probate.

Once a person has executed a Will, there are times when he wants to change the terms of the document. Once again, any modifications need to comply with EPTL 3-2.1. This can be done by a Codicil or amendment to the original Will or a by executing a new Will that is properly signed. However, if the original Will is changed by merely handwriting new information on the document or making notes about cancelling it, the Will in original form still remains viable. This is because the changes were not done in accordance with the statute.

October 23, 2019

Important Information About Surrogate’s Court Accounting Proceedings

by Jules M. Haas

The job of an estate fiduciary is to settle a decedent’s estate. Whether the fiduciary is an Executor or Administrator there are three main aspects to estate administration. At the outset, the proceeding to appoint a fiduciary is critical. This is because until an administrator or executor is appointed, there is no one who has authority to handle the affairs of the decedent. Thus, estate assets cannot be collected or protected and estate debts and obligations cannot be paid or satisfied.

Each estate is confronted with different issues. Sometimes a Last Will needs to be probated which may result in estate litigation in the form a Will Contest. Other estates may be intestate which can involve kinship hearings.

Once a fiduciary is appointed, the next step is to collect the assets of the estate and determine what debts, taxes or other liabilities need to be resolved. On occasion, there may be lawsuits involving the decedent concerning debts such as mortgages, credit cards or medical expenses. There can be disputes concerning real estate ownership or business interests. The New York Probate Lawyer Blog has published many articles relating to estate administration.

October 16, 2019

Five Important Steps For An Executor Or Administrator Of A New York Estate

by Jules M. Haas

When a person dies there is a lot of concern about the actions to be taken regarding the handling of the individual’s estate. While this article talks about 5 important steps or considerations in truth, depending upon the nature of the estate, there can be many more.

To begin with, there may be uncertainty regarding the manner in which the decedent’s body is to be disposed of and who should be the person in charge of this matter. If the decedent left instructions or a pre-paid funeral account, this matter may be easily resolved. Unfortunately, in some cases there are no precise funeral or burial instructions and there may be competing family members or friends who want to control the final rites and burial decisions. This can lead to litigation if not resolved.

Another consideration is whether or not the decedent left a Last Will and Testament. The New York Probate Lawyer Blog has published many articles concerning this subject. If the decedent left a Last Will, the original should be located so that it can be filed with the Surrogate’s Court and a Probate Proceeding can be started. If there is no Will and the decedent died intestate, then an administration proceeding needs to be filed to have Letters of Administration issued to the Estate Administrator. When a Will is probated, Letters Testamentary are issued to the Executor.

October 9, 2019

Important Information Regarding Collecting New York Estate Assets

by Jules M. Haas

Among the many fiduciary duties that an Executor or Administrator must perform is the duty to locate and collect estate assets. There are a variety of assets which include bank accounts, security accounts, retirement funds, business interests, life insurance, annuities and real estate. In New York, along with real property such as a single family home, a decedent may own a cooperative apartment or a condominium unit.

The job of the fiduciary is to collect these assets and ultimately distribute them or their proceeds to the estate beneficiaries. In most instances it is fairly easy to identify and collect funds particularly when they are held in bank accounts or other financial institutions in the name of the decedent. The New York Probate Lawyer Blog has devoted numerous blog posts to asset collection and estate settlement.

However, there are occasions when identifying and collecting estate assets can present difficulties. An interesting example of a problematic situation was discussed in a Manhattan estate case entitled Matter of Estate of Solano. This case was decided by Manhattan Surrogate Nora Anderson on September 30, 2019. In Solano, the decedent had purchased an interest in her cooperative apartment which was one of the Mitchell-Lama program cooperatives. Under this program the purchaser paid a small initial price and, upon death, the owner’s estate was only entitled to receive back the value of the owner’s initial investment.

October 2, 2019

Helpful Information Concerning The Appointment Of A New York Guardian For Incapacity

by Jules M. Haas

The statues concerning the appointment of a New York Guardian for personal needs or property management are located in Article 81 of the Mental Hygiene Law (MHL). In order to have a Guardian appointed MHL 81.02 requires that the alleged incapacitated person either agree to the appointment or that the person be found to be incapacitated.

The New York Probate Lawyer Blog has posted many articles concerning the appointment process for Guardians and other aspects of Guardianship. Briefly, there is the requirement that a petition be filed with the Court and that proper notice be given to interested parties. An alleged incapacitated person has the right to oppose the imposition of a Guardianship and also the selection of the person appointed. In these hearings the Court will focus on an individual’s functional limitations with regard to engaging in activities of daily living.

One interesting section of Article 81 is MHL 81.29 entitled “Effect of the appointment on the incapacitated person”. This section is important since a person who is found to be incapacitated retains certain civil rights. Also, there may be aspects of the person’s pre-appointment actions which may need to be modified if they were tainted by the incapacity.

September 25, 2019

Interesting Information About A New York Preliminary Executor

by Jules M. Haas

There is general agreement that it is important to prepare a New York Estate Plan. The documents that may be considered in planning include a Last Will and Testament, Health Care Proxy, Power of Attorney, Living Will and Revocable Trust. Some of these papers are referred to as advance directives.

When a person prepares a Last Will, the document is comprised of many different provisions. There are dispositions of a person’s assets which may be comprised of specified assets or bequests. Other dispositions may be in more general terms such as the disposition of the residuary estate.

Another very important part of a Will is the nomination or designation of fiduciaries such as Executors and Trustees.

September 18, 2019

Important Information Concerning The Appointment Of An Estate Administrator

by Jules M. Haas

When a person dies without a Last Will and Testament he is known to have died intestate. In these cases the person’s distributees or next of kin have the statutory right to inherit the estate assets. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides the list of individuals who are entitled to inherit the estate. The New York Probate Lawyer Blog contains numerous articles discussing intestate estates.

Before the estate can be settled an administrator of the estate must be appointed. Surrogate’s Court Procedure Act (SCPA) section 1001. entitled “Order of priority for granting letters of administration” designates the distributees who have the priority to be appointed as estate Administrator. Essentially, the priority under SCPA 1001 follows the inheritance rights under

EPTL 4-1.1.