New York Probate Lawyer Blog

February 20, 2019

Attorney Supervision of The Execution of a New York Will

When a Last Will and Testament is submitted to the Surrogate’s Court, the document is always reviewed for due execution. The requirements needed to properly sign a Will are located in Estates, Powers and Trusts Law section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.

The New York Probate Lawyer Blog has published many articles regarding Will execution. The statute is quite explicit and requires that there be a writing and that there be two witnesses. Of course, there tends to be many variations that arise when a Will is offered for probate. Sometimes the witnesses to the Will who may be called upon to testify cannot remember the Will signing ceremony. In other instances, a witness may have died or it may not be possible to locate the witness.

Typically, when a Will is signed, the witnesses sign an affidavit called a self-proving affidavit that sets forth all of the elements regarding proper execution. However, when an interested party seeks discovery under Surrogate’s Court Procedure Act 1404 entitled “Witnesses to be examined; proof required”, or there is a Will Contest, the witnesses need to provide in person testimony.

February 13, 2019

Preliminary Letters Testamentary May Be Limited By The New York Surrogate’s Court

by Jules M. Haas

When a person dies and leaves a Last Will and Testament, it is necessary to commence a probate proceeding to have the Will validated. Probate in New York requires that various documents be filed with the Surrogate’s Court. The original of the Will needs to be provided along with an original death certificate. The petitioner is typically the person named as the Executor in the Will. A Probate Petition is prepared which contains information including the date of the Will, the names of the attesting witnesses, the estimated value of the estate and the names and addresses of all parties interested in the matter. These parties include the decedent’s distributees (next of kin) and the beneficiaries named in the Will.

There are many situations that may delay admitting a Will to probate. One common occurrence is a Will Contest. If the decedent’s distributees file Objections to the Will, then estate litigation associated with a Contested Will can delay final probate for a year or more.

Another delay may result where it is difficult to identify or locate the decedent’s distributees. If a due diligence search needs to be completed before probate, there may be a delay for many months. The New York Probate Lawyer Blog has posted many articles concerning Kinship, Probate and Will Contests.

February 6, 2019

New York Guardianship Cases May Involve Accountings By An Agent Under A Power of Attorney

by Jules M. Haas

Article 81 of the New York Mental Hygiene Law (MHL) contain the various provisions regarding the appointment of a Guardian for a person who is incapacitated. The main title of this Article is “Proceedings For Appointment of A Guardian For Personal Needs or Property Management”.

The various sections of the statute provide both the procedure and the substantive law regarding Guardianship cases. As can be seen from the title, the Court can appoint either a Guardian for property management or to assist with a person’s personal needs. In most cases the Court will appoint both types. The appointment very often will be for one person who then acts in both capacities. MHL section 81.21 sets forth the powers of the property Guardian while MHL section 81.22 details the personal needs powers.

Many of the Guardianship cases concern issues dealing with a Power of Attorney. Sometimes, a person who was appointed as an agent under a Power does not act properly or abuses his authority. When a Guardianship proceeding is commenced the Court may be asked to review the agent’s actions. Such review is important since the Court needs to determine wither a Guardian is required to try and recoup funds that were wrongfully administered.

January 30, 2019

Did You Know That Occupancy of Estate Property May Result in Liability for Rent

by Jules M. Haas

One of the most valuable assets compromising an estate is real estate. Typically, a decedent may own a home which he occupied with other individuals or which third parties occupied alone.

When the Surrogate’s Courts appoints an Administrator or Executor, the duties of the fiduciary often include securing and selling the real estate. The real estate may need to be sold to satisfy estate obligations such as a mortgage or credit card bills or other debt obligations. Also, the property may need to be liquidated to divide up the proceeds among a number of beneficiaries.

There are many situations where the persons residing in the estate property refuse to vacate. I have represented numerous estates where landlord tenant eviction proceedings were required to evict persons occupying estate property. Additionally, there are estate litigation proceedings that can be commenced in the Surrogate’s Court to remove persons from estate property. These proceedings can be ejectment cases or turn-over proceedings pursuant to Surrogate’s Court Procedure Act 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information”.

January 23, 2019

Information Regarding Examining and Safeguarding Decedent’s Property In The Residence

by Jules M. Haas

After a person dies it is usually necessary to enter the decedent’s residence for various purposes. To begin with, it may be that the home needs to be searched to see if the person left a Last Will and Testament. Gaining access to the home may not be difficult if the decedent lived with a spouse or other family member. However, if the decedent lived alone or voluntary access cannot be obtained, then an application can be made to the Surrogate’s Court for an Order to search the residence for a Will.

There may also be situations where either before or after a fiduciary is appointed, a residence is searched to locate papers and documents relating to the person’s income, assets, debts, business obligations and ordinary bills such as utilities, mortgage, rent or credit cards.

There are a number of important considerations when a residence is searched and the decedent’s personal effects are first reviewed. If the individual entering the premises is not a duly appointed estate fiduciary he does not have any authorization to remove or otherwise discard any of the decedent’s property. Additionally, even if the individual has been appointed as Executor or Administrator or Preliminary Executor, extreme care should be taken to inventory and safeguard the contents.

January 16, 2019

Did You Know That a New York Estate Filing Depends on the Decedent’s Domicile

by Jules M. Haas

After a person dies it is necessary to determine whether it is necessary to file a Surrogate’s Court proceeding. Such filing would be in the form of either a Probate Proceeding or an Administration Proceeding. The Surrogate’s Courts are located in the various counties in New York. For example, there is the Brooklyn Surrogate’s Court, a Manhattan Surrogate’s Court and a Queens Surrogate’s Court.

An initial inquiry regarding a decedent’s estate concerns whether or not the person was a New York domiciliary. Domicile is commonly known as the place where a person has a permanent home. While a person may have a number of different residential addresses, he has only one domicile.

Domicile is important because it typically determines the local law that controls the disposition of an estate. The New York Courts usually do not accept a case for filing absent a New York domicile or the presence of the decedent’s property in New York. The New York Probate Lawyer Blog has published a number of articles concerning domicile and estates.

January 9, 2019

Did You Know That New York Will Contests Require Factual Evidence to Succeed

by Jules M. Haas

Probating a Will in New York requires strict adherence to statutory and procedural rules. The primary source of authority is the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act.

When a person dies and leaves a Last Will, there are many instances when family members or friends may feel that the provisions in the document do not reflect the decedent’s true desires or intentions. The immediate reaction is to speculate that the Will is the subject of some impropriety.

However, New York estate lawyers who are involved in estate litigation in the Surrogate’s Court know that contesting a Will requires an analysis of various factors and elements. The New York Probate Lawyer Blog contains many articles concerning probate law.

January 2, 2019

Learn Information Regarding The Appointment of New York Administrators

by Jules M. Haas

When a person dies without a Last Will and Testament he is said to have died intestate. In these cases there are two statutes in New York that must be referred to for primary consideration. Estates, Powers and Trusts Law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, lists the priority of the decedent’s distributees (next of kin) who are entitled to inherit the estate. As can be expected, a decedent’s spouse and children have the top priority followed by a decedent’s parents and then brothers and sisters. New York estate lawyers are familiar with the schedule of persons who have inheritance rights.

The other important statute is Surrogate’s Court Procedure Act (SCPA) section 1001 entitled “Order of priority for granting letters of administration”. This provision lists the persons who have the right to be appointed as the estate administrator. Again, as expected, a surviving spouse and children receive top priority. The New York Probate Lawyer Blog has published numerous articles concerning estate administration proceedings and EPTL § 4-1.1 and SCPA §1001.

One of the common issues that arise and result in estate litigation in the Surrogate’s Court is when more than one person wants to act as the Administrator and there is a dispute as to who should be appointed. This can happen when the decedent is survived by brothers and sisters and there is more than one person who has an equal right to the appointment. Typically, one of the individuals will file a Petition for Letters of Administration in the Surrogate’s Court and another distributee will file Objections to the appointment and a Cross-Petition for the opposing party to be appointed. While SCPA §1001 allows the Court to issue letters of administration to more than one person, this may not be possible if the parties do not get along. Also, the Courts have recognized that the appointment should be given a distributee who has the largest share of the estate or is preferred by a majority of the other distributees.

December 26, 2018

Considerations Regarding Guardianships in New York

by Jules M. Haas

The appointment of a Guardian in New York requires the commencement of a Guardianship Case in the Court. It may be difficult at times to determine the appropriate procedures and the proper Court concerning these matters. There are Guardianships under Article 17-A of the Surrogate’s Court Procedure Act (SCPA). Article 81 of the New York Mental Hygiene Law (MHL) also sets forth a means for the appointment of a Guardian.

A recent Brooklyn Guardianship case decided by Brooklyn Surrogate Margarita Lopez Torres dated December 5, 2018 entitled Matter of Eli T., provides an excellent explanation of the various statutory frameworks. As explained by the Court, the Article 17A rules concern Guardianships for people who are deemed to have an intellectual or developmental disability. The disability must be permanent or indefinite. In these cases the petition to the Court must include certifications from licensed physicians and psychologists. The Surrogate pointed out that the Article 17A procedure is not only limited regarding the type of disability that can be considered, the resulting Guardianship results in a complete deprivation of the incapacitated person’s rights.

In contrast, an Article 81 Guardianship, which is filed in the New York State Supreme Court, can involve all different types of disabilities. Most importantly, this proceeding can mold the terms and restrictions of the appointment to meet the needs and requirements of the incapacitated person. The Court attempts to provide the least restrictive conditions on the individual so that they can retain some decision making power. A lot depends upon the person’s ability to handle their activities of daily living.

December 17, 2018

Interesting Information Regarding A New York Spouse’s Right to Estate Inheritance

by Jules M. Haas

When a person dies it is necessary to determine the individuals who have a right to inherit the estate assets. While this may at first seem to be an easy task, the fact is that in many cases the first identification of such persons may be complicated and time consuming.

To begin with, an initial inquiry needs to be made as whether the decedent had a Last Will and Testament. If so, the Will sets forth the decedent’s estate plan and provides for various named beneficiaries. It is also important to see if the Will was prepared by a New York Estate Attorney who may have information regarding the identity of the named beneficiaries and the decedent’s next of kin.

In the proceeding to probate a Will all of the decedent’s distributes (next of kin) must be notified. Also, if there is no Will and the decedent died intestate, the distributees are the persons who are entitled to share the estate assets.