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nycSurrogatesThe preparation and execution of estate planning documents typically occurs in the State where a person maintains their primary home.  Such location is referred to as a person’s domicile.  Domicile is distinguishable from mere residence.  Someone can have multiple residences, but can have only one domicile.

Estate planning papers can include a Last Will and Testament and a living or revocable trust.  Other documents, such as advance directives like Health Care Proxies and Powers of Attorney may also be created.

It is not unusual for a person to prepare various papers in an estate plan and then move their home to another State or even another country.  Nowadays, after the pandemic and the advent of virtual employment, a person’s domicile or permanent home may change over time.  In situations where there has been a change of domicile, the issue may arise as to the validity of a Will or Trust which was prepared and executed in another state.  It is quite common to see a Will or Trust which needs to be presented to a New York Court which was prepared and signed in another State.  Often these documents, particularly a Trust, contain language which states that the document is to be interpreted and controlled by the laws of the State of origin.

Probate-300x201Probating a Last Will and Testament in New York requires that the Court be satisfied that the Will complies with all the statutory and Court-mandated requirements.  The primary source of reference is Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  This statute sets forth the manner in which a Will must be signed.  For example, the statute says that the Will needs to be signed by the testator at the end of the document.  There is also a requirement that there shall be at least two (2) attesting witnesses who must verify that the testator signed the Will in their presence.  The New York Probate Lawyer Blog has many articles concerning issues that may arise with regard to the execution of a Will and estate settlement.  In most instances, a Will is prepared by an attorney.  It is also usually signed by a testator and witnesses under the supervision of an attorney.  In these cases, there is a presumption that the requirements of the statute regarding proper execution were adhered to.

When someone wishes to contest a New York Will, there are typically a number of grounds which are asserted.  Lack of due execution is one ground, as well as lack of testamentary capacity, undue influence and fraud.  Forgery may also be alleged.  During the probate proceeding, all interested parties are given notice regarding the probate case in Surrogate’s Court.  This allows the parties to file objections to a Will and also to engage in pre-objection disclosure provided by Surrogate’s Court Procedure Act Section 1404 entitled “Witnesses to be examined, proof required.”

This blog recently discussed a situation where a person failed to timely assert rights and then sought to vacate a decree admitting a Will to probate.  Such a situation recently was the subject of a Queens estate case entitled Estate of Cunningham, decided by Queens Surrogate Peter J. Kelly on June 27, 2023.  In Cunningham, although objections to the Will were filed, the objectant failed to oppose a motion for summary judgment which sought to dismiss the objections.  After the motion was granted and a decree admitting the Will to probate was issued, the objectant tried to vacate the decree.

Probate-2-300x200When a person dies and leaves a Last Will and Testament, the next step is to commence a proceeding to probate the Will.  The probate process can be very complicated.  In the first instance, it is important to locate the original of the Last Will and Testament.  When the original document cannot be located and only a copy is available, it is very difficult to complete probate.  Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” must be complied with.  One of the biggest hurdles to overcome is that if the original of the Will was known to have been in the possession of the decedent and cannot be found, then the presumption is that the original Will was revoked.

The probating of a Will in Surrogate’s Court requires that all of the decedent’s next of kin, known as distributees, be notified concerning the Court case.  The reason for such notification is to afford the distributees the opportunity to contest the Will.  In many cases, a distributee agrees to sign a Waiver form consenting to the probate of a Will and the appointment of an executor.  When a Waiver form is not obtained, a proponent of the Will needs to have the Court issue a Citation directed to the non-waiving party.  A Citation is like a summons.  It must be served on a distributee.  The citation has a Court date on which the distributee must appear and tell the Court whether objections to the Will are going to be filed.  If the distributee fails to appear or notify the Surrogate’s Court on the return date, then there is deemed to be a default and the Will is admitted to probate.

When a party defaults in a probate case, it is possible to ask the Court to vacate the default if sufficient reasons are presented.  This situation recently occurred in a Manhattan estate entitled Estate of Frank.  In a decision dated May 25, 2023, Manhattan Surrogate Hilary Gingold granted an application to vacate a probate decree.  It seems that the mother and sole distributee of the decedent had been hospitalized due to an injury which occurred shortly after being served with a Citation.  The injury caused the distributee to be cognitively impaired.

House-Keys-300x200There are many issues which a New York estate administrator may need to deal with.  The basic function of an estate executor or administrator involves identifying and collecting assets and resolving claims and other obligations affecting an estate.  The New York Probate Lawyer Blog contains many articles describing various aspects of estate settlement.

A decedent may own different types of assets.  These may include financial accounts and business interests.  However, one of the most common and valuable assets is a real estate residence.  While the decedent’s house may be the most valuable item in an estate, a number of problems may exist regarding the property.  For instance, there may be a mortgage which needs to be paid, or real estate taxes that are due.  The property may need repairs in order to maintain its value and structural integrity.  In many cases, an estate does not have sufficient assets to pay for such expenses.  As a result, the property would need to be sold to satisfy these items.  Also, real estate assets may need to be sold to be able to make payment of estate funds to various beneficiaries.

A major issue which often arises is that the real estate which is to be sold may be occupied by third parties or other family members. When this occurs, the administrator or executor must commence Court proceedings to obtain the eviction of the occupants.  This Probate Blog has discussed this issue in previous posts.

shutterstock_204507106-300x254The New York estate laws contain provisions concerning the various relationships between family members.  There are statutes concerning spousal rights and also inheritance rights relating to other family members.  For example, a New York spouse has the ability to make a claim against the other spouse’s estate if they are disinherited. Estates, Powers & Trusts Law Section 5-1.1-A entitled “Right of election by surviving spouse” provides that a disinherited spouse can file a right of election to claim one-third (1/3) of a decedent’s net estate.  The New York Probate Lawyer Blog contains many articles concerning a spouse’s right of election.

On the other hand, a person has an absolute right to disinherit any other person, including children.  Children have no right to receive a share of a parent’s estate if a person leaves a child out of a Last Will and Testament or does not have a child as a beneficiary of an asset that passes by operation of law.

There are additional considerations where a decedent does not have a Last Will.  Estate settlement and distribution will be controlled by the laws of intestacy.  EPTL Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” sets forth the manner by which an intestate estate is to be paid.  There is a priority among the decedent’s family members and a spouse and children are at the top of the list.

nycSurrogatesEstate settlement may involve complex issues regarding a decedent.  Many of the articles appearing in the New York Probate Lawyer Blog discuss issues concerning the probate of a Last Will and Testament or the appointment of an administrator of an intestate estate.  Probate and administration proceedings can take many months and involve Will contests, kinship determinations and disputes regarding the qualifications of a possible executor or administrator.

It should be recognized that the appointment of an estate fiduciary is just one phase involved in settling an estate.  Once a fiduciary takes office, there are many other issues which may need to be resolved.  These matters may involve extensive Surrogate’s Court litigation or disputes which are filed in other Courts.  Such controversies may involve claims against a decedent arising out of a business or creditor claims.

An interesting dispute emanating from an estate was recently the subject of a lawsuit in Manhattan Supreme Court.  Castellotti v. Free was a lawsuit in which the decedent (the parties’ mother) died, leaving a substantial estate.  Before death, it appears that the decedent’s son was involved in a divorce.  The decedent, who disliked the son’s spouse and wanted to prevent the spouse from sharing in any part of the decedent’s estate, took part in an oral arrangement whereby the decedent changed her Will to leave her entire estate to her daughter.  There was an oral agreement whereby after the divorce was completed, the daughter would transfer 50% of the mother’s estate assets and proceeds to her brother.  While there were additional terms to the oral agreement, the 50/50 arrangement was the centerpiece of the oral contract.  As can be anticipated, after the mother’s death, the daughter allegedly failed to comply with the oral agreement and failed to transfer estate assets to her brother.  As a result, the brother commenced a lawsuit against his sister to enforce the oral agreement.

Fiduciary-300x185When proceedings are filed in Surrogate’s Court regarding a decedent’s estate, the primary focus is inevitably on the person who is, or is seeking to be, the estate fiduciary.  In cases of intestacy, there may arise issues regarding the qualification of the individual seeking to be appointed as administrator.  Similarly, if the decedent died leaving a Last Will and Testament, the person applying to be appointed as executor also must meet certain qualifications.

It is not usual for other family members or interested parties to file objections with the Court regarding the appointment of the petitioning party.  These issues may also arise during the course of estate settlement where persons who are estate beneficiaries seek to remove an already-appointed fiduciary due to claimed wrongdoing or breach of fiduciary duty.  Such alleged conduct can include loss or waste of estate assets, undue delay in settling estate affairs or conflicts of interest regarding the disposition of assets or inequitable treatment of beneficiaries’ interests.

In all of these types of cases, the Court is very cautious regarding the disqualification or removal of an administrator or executor.  There is great preference afforded to the choice of a fiduciary, such as an executor, by a decedent.  Also, there is a statutory designation as to whom has priority to be appointed as administrator of an intestate estate.

Kinship-blue-200x300There are many instances where a person dies intestate, without a Last Will and Testament.  When this occurs, a decedent’s estate is distributed to his next of kin or distributees pursuant to the priorities established under Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.”  The New York Probate Lawyer Blog contains many articles concerning intestate estates and the appointment of administrators in these cases.

Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” sets out the persons who are entitled to be appointed as estate administrator when there is no Will.  Of course, if a person leaves a Will, the Will provisions provide for the appointment of executors which typically negates the need to rely on SCPA 1001 for the appointment of a fiduciary.  Preparing a Will which then is probated avoids some of the issues in Surrogate’s Court relating to intestacy.  The presence of a Will also may facilitate estate settlement.

When there is no Will and the identity of a decedent’s distributees are unknown at the outset, generally, the Surrogate will appoint a local public official called the Public Administrator to administer the decedent’s estate.  This may also occur when the closest known next of kin are cousins or more distant relatives.  While kinship issues may arise in probate proceedings, usually there is a nominated executor who can handle estate affairs while the kinship issues are determined.

nycSurrogatesThe process of administering an estate in the Surrogate’s Court may involve numerous proceedings.  Initially, it may appear that only two main proceedings exist when a person dies.  One type of proceeding is called probate.  This situation arises when a person leaves a Last Will and Testament.  A Will must be admitted to probate in order for its provisions to take effect.

Another type of proceeding is known as administration.  This occurs when a person dies intestate – without leaving a Will.  In these cases, the decedent’s next of kin are designated in the estate laws to receive a share of the estate.

While these two proceedings dominate what is typically viewed as an estate case, there are numerous other proceedings which may occur in Surrogate’s Court.  For example, a person may commence a proceeding to compel a third party to file a Will with the Court.  Also, before an estate is settled, there may need to be a kinship proceeding to determine a decedent’s heirs.  Kinship cases can take place inside both probate and intestate administration matters.  Additionally, an accounting proceeding may be needed to finalize an estate and determine the shares of an estate to be distributed.

Spousal-Rights-300x181A very common aspect in New York estate settlement and estate litigation concerns the rights of a surviving spouse.  The New York Probate Lawyer Blog has published numerous posts concerning spousal rights and decedent’s estates.

Estate lawyers in New York are aware that state statutes such as the Estates, Powers and Trusts Laws (EPTL) and the Surrogate’s Court Procedure Act (SCPA) provide a surviving spouse with certain preferential rights.  For instance, if a person dies intestate without a Last Will and Testament, EPTL Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides that a surviving spouse receives the first $50,000.00 of the estate and fifty percent (50%) of the balance of the estate to be distributed.  Also, if a decedent leaves a Last Will but fails to provide for a spouse, EPTL Section 5-1.1-A entitled “Right of election by surviving spouse” allows a disinherited spouse to elect to receive one-third (1/3) of the estate.  This election includes assets defined as testamentary substitutes which include items such as joint assets.

Spousal rights are provided in other areas such as estate tax.  For both New York and Federal estate tax, generally, all assets left to a surviving spouse are subject to a full marital deduction and not subject to estate taxation.

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