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The statutes in New York provide for a Guardianship for a person who is found to be incapacitated. Article 81 of the Mental Hygiene Law is entitled “Proceedings For Appointment of a Guardian For Personal Needs or Property Management”.

In a typical case a Guardianship is sought to be established by someone who is concerned with the welfare of an alleged incapacitated person. There are numerous situations that arise that can prompt a Guardianship application. The more common problems involve cases where the incapacitated person cannot make decisions regarding assets or handle property matters. As a result, various bills are not being paid such as utility bills, medical expenses, a mortgage or rent or other necessary items. Due to the person’s inability to deal with these matters he is at risk and may suffer harm if these expenses remain unpaid. Continue reading

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There are numerous protections afforded to a surviving spouse in the New York Estate Laws. When a person dies without a Last Will, the Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides that a surviving spouse is entitled to receive the sum of $50,000.00, plus one-half of the decedent’s administration estate. Additionally, it is important to know that a spouse cannot be disinherited. Even if a decedent leaves a Last Will, a spouse can file an election so as to receive at least one-third of an estate. This Right of Election applies to situations where the decedent dies with or without a Will. The New York Probate Lawyer Blog has published numerous articles concerning the Right of Election.

In many cases, a decedent may leave property to designated beneficiaries outside of the estate property. These assets may include joint bank accounts, joint real estate or retirement benefits. There are instances where the decedent had been employed by the government and there are significant death benefits. Even where these benefits are made payable to children or other third parties, the spouse through a Right of Election may be entitled to receive one-third of these benefits. One common source of benefits is from NYCERS which is the New York City Employees’ Retirement System. I have represented many individuals in connection with using a Spousal Right of Election to obtain a spousal share of these funds. Continue reading

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Creating a Last Will involves a number of considerations. A person should take an inventory of his assets including the value of each and the type of ownership. It is important to know if the asset is owned in the person’s individual name, or is a joint asset or payable on death to a designated beneficiary.

Also, decisions need to be made concerning the identity of the beneficiaries to be named in the Will, as well as the amount of the bequest each is to receive. An Estate Lawyer in New York City can be helpful with creating a plan and understanding the nature and effect of asset ownership and Will provisions. Continue reading

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An estate fiduciary can be an Executor, Administrator or Trustee. All fiduciaries have various duties and responsibilities. When a fiduciary fails to fulfill one of these obligations he may be found to have breached his fiduciary duty.

One of the most important duties of a fiduciary is to provide beneficiaries with an accounting of his financial activities. The New York Probate Lawyer Blog has discussed accounting proceedings in many earlier posts. In an accounting, there will be numerous schedules detailing the transactions that were engaged in. For instance, in Schedule A there will be a list of assets that were collected. Another Schedule provides details regarding income received during the time period of the account. Yet another Schedule will provide the items of expenses and payments that were made. Continue reading

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Preparing an estate plan is important. When a person dies without a Will, he has forfeited his opportunity to create a plan that actually reflects his intentions. The New York Probate Lawyer Blog has published many articles talking about intestate estates (where there is no Will). In these situations Estates, Powers and Trusts Law (EPTL) Section 4-1.1, entitled “Descent and distribution of a decedent’s estate”, controls the designation of the persons who inherit the estate.

You need to prepare an estate plan. This plan can include a Last Will and Living Trust. However, it is equally important that extreme care and attention be given to the preparation and execution of these documents. An attorney, such as a Manhattan estate attorney or Brooklyn estate attorney, can assist you with the details and provisions that you provide in the documents. If the terms and language in the Will are confusing or not effective, your intentions will not be carried out. Continue reading

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Did you know that administering a New York estate can be a very complex matter. Estates can vary in nature. There can be an Administration Estate when a person dies intestate (without a Last Will). There can be a Probate Estate when a person dies with a Will that is admitted to probate in the Surrogate’s Court. In a probate case the Court appoints an Executor. In an Administration case the Court appoints an Administrator.

The New York Probate Lawyer Blog has discussed many issues concerning estate settlement. Each estate can face unique problems that the estate fiduciary needs to anticipate and address. In some matters the decedent may have incurred a lot of debt or other monetary obligations that must be paid out of estate funds. In other situations the estate may be responsible to pay for various taxes related to the decedent. These taxes can be State or Federal income taxes that are due to income prior to the decedent’s death. There may also be income taxes incurred by the estate. Estate taxes may need to be provided for. Both New York State and the Federal government impose estate taxes. In all these matters, the estate fiduciary must be very cautious and make certain that estate liabilities are paid. The fiduciary can be personally liable if these obligations are not properly addressed. Continue reading

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One of the most essential aspects of every trust and estate is the fiduciary who is in charge of its affairs. The fiduciary may be an Executor, Administrator or Trustee depending upon the type of situation. However, in all cases the fiduciary has many powers and obligations.

Estates, Powers and Trusts Law (EPTL) Section 11-1.1 entitled “Fiduciaries’ powers” provides a list of the powers that fiduciaries can exercise. For example, an Executor may need to: (i) take control over property; (ii) open a bank account; (iii) sell property; (iv) defend a lawsuit; (v) or commence a legal proceeding to protect the interests of a Trust or Estate. The New York Probate Lawyer Blog has discussed many situations regarding fiduciaries’ powers. Continue reading

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It is important to know your rights if you are disinherited. New York inheritance laws are rather complex. There are many occasions where a close family member learns that they have not been provided for in a decedent’s Last Will. These situations often result in Estate Litigation in the form of a Will Contest.

A recent case involving the death of French rock star Johnny Hallyday is a typical example of children being left out of a Will. In an article by Henry Samuel in a February 2018 post of The Telegraph, it was reported that Mr. Hallyday left his entire fortune to his fourth wife. Two of his older children were left nothing in a Will which was redone shortly before Mr. Hallyday died. Continue reading

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Did you know that an estate is typically comprised of many different types of assets? These assets may include bank and financial accounts, retirement funds, life insurance and real estate. It is not uncommon for real estate to constitute the most valuable item in an estate.

Real estate in a general sense can include single or multi-family residential property, commercial property, condominiums and co-operative apartments. When there are disputes regarding real estate in which a decedent had an interest, the question often arises as to whether the Surrogates Court is the appropriate forum to litigate such issues.

For example, the New York Probate Lawyer Blog has published numerous posts discussing the problems presented when third parties occupy estate property. Generally, when a person is improperly occupying real estate, in a typical landlord-tenant type of situation, the property owner will commence a proceeding in the New York City Civil Court landlord-tenant part (or similar Court outside of NYC), to evict the holdover or non-authorized occupant.

Continue reading

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It is important to complete estate planning papers so that a person’s intentions and desires are clearly set forth. The list of documents to plan an estate can include a Last Will and a Living Trust. When an Estate Planning Lawyer prepares these papers it is important to provide the attorney with all family and asset information so that the documents that are prepared are complete and accurate.

For example, it is necessary to review all asset information. The New York Probate Lawyer Blog has published many articles discussing the different issues associated with various assets for planning purposes. If an individual owns joint assets or assets where there are designated beneficiaries, these items typically are not controlled by the terms of a Will. These types of assets pass directly to the joint owner or the named beneficiary. Continue reading

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