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Did you know that a fiduciary in New York has certain duties and obligations. A fiduciary includes an Executor, Administrator and Trustee. These duties and obligations include the protection of estate assets and the payment of funds to the beneficiaries.

When a fiduciary fails to act properly, he may be found to have breached a fiduciary duty. There are many different circumstances that can result in a breach of duty. For example, if an Executor uses estate funds for his own benefit, such conduct is improper. Also, if an Administrator fails to pay an estate expense on time such as taxes and the estate is charged extra interest and penalties, this situation may be found to be a breach of duty. Continue reading

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It is important to know that when a person dies intestate (without a Last Will), his estate is distributed to his closest next of kin. Additionally, these persons, known under the statute as distributees, have the right to be appointed as the Administrator of the estate.

Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of priority for granting letters of administration”, sets forth the persons who have the right to be appointed. The list begins with the decedent’s surviving spouse, then his children, then grandchildren and continues with relatives of more distant connection. Continue reading

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Guardianship cases in New York are controlled by Article 81 of the Mental Hygiene Law (MHL). When a person wants to commence a Guardianship proceeding, there are a number of papers that must be filed with the Court. The two essential papers are the Petition and the Order to Show Cause.

In the Petition, which is usually prepared with the assistance of a Guardianship Attorney, all of information regarding the Alleged Incapacitated Person (AIP) is provided. MHL Section 81.08 entitled “Petition”, lists the information that needs to be provided. These items include the name, address and age of the AIP and a description of the AIP’s ability to manage his activities of daily living. Also, the powers regarding property management and personal needs that are being sought should be specified. The AIP’s financial information should be provided, as well. Continue reading

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The settlement of an estate in New York can be divided into three main categories. The first category or phase is the appointment of the fiduciary. When a decedent has a Last Will, then the Will needs to be filed with the Court and admitted to probate. Probate proceedings in the Surrogate’s Court can be contentious and involve Will Contests.   Once a Will is admitted to probate, an executor is appointed and the terms of the Will control the ultimate estate distributions.

When a decedent does not have a Will, then an Administration proceeding must be filed to have an Administrator appointed for the estate. The estate of a decedent who dies intestate (without a Will) is distributed to the decedent’s distributees (next of kin). The New York Probate Lawyer Blog has posted many articles concerning Probate and Administration proceedings. Continue reading

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Last Will and Testament is an important part of a person’s estate plan. There are a number of papers that a person should consider when starting to prepare a plan. In addition to a Will, these papers can include a Living Will, a Health Care Proxy, a Living Trust and a Durable Power of Attorney.

The New York Probate Lawyer Blog has published many articles discussing the items of information that must be considered when preparing these documents. Simply put, a person needs to understand the nature and extent of his assets. This should include a review of the ownership title, such as joint or individually owned assets, as well as the value of the assets. Continue reading

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Guardianship cases in New York are controlled by Article 81 of the Mental Hygiene Law (MHL). These proceedings concern the appointment of Guardians for personal needs and for property management.

The Court proceedings in Article 81 cases involve the filing of a petition with the Court and a hearing. The Court must decide whether clear and convincing evidence has been presented that shows a person to be incapacitated and in need of a Guardian. Continue reading

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The probate process in New York City can be very complex . There are numerous statutes in the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA), as well as Court rules, that deal with the probate of a Last Will.

Many cases in the Surrogate’s Court become involved in disputes and estate litigation. These contested matters can significantly delay estate settlement. Among the problems that can be encountered are Will Contests, disputes regarding Kinship and controversies concerning the appointment of the Executor. The Court, as well as the parties interested in an estate, are always concerned that any litigation in the Court will result in the decedent’s estate being unattended to which may adversely affect the assets or other interests of the decedent. Continue reading

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A recent column by Cindy Adams in New York Post on October 16, 2017 discusses the death of entertainer, Jerry Lewis and a person named Suzan who claims to be his illegitimate child. According to the article, Lewis never acknowledged Suzan as his child. Lewis also made no provision for her in his Last Will when he died in August 2017.

If Lewis had been a New York domiciliary, Suzan would have had to make a claim of paternity in the Surrogate’s Court proceedings where Lewis’ Will was offered for probate. As a distributee or next of kin of Lewis, Suzan then would have had a right to contest Lewis’ Will. However, since Suzan’s kinship status was in doubt, the probate court would have first been required to determine if she had standing to file Objections to the Will. Continue reading

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A decedent’s estate in New York is comprised of different assets. In many estates the most valuable asset is real estate. The real estate assets can be in the nature of the decedent’s residential property or commercial or business property. It is also common for someone to have owned a condominium apartment or a unit in a cooperative corporation.

Controversies and estate litigation often arises concerning these real estate interests. One common problem that is faced by estate executors or administrators is when the real estate needs to be sold and a third-party or even an estate beneficiary refuses to vacate the property to allow it to be sold. In these cases eviction proceedings in the landlord-tenant Court may be needed. Eviction proceedings can also be commenced in the Surrogate’s Court. The New York Probate Lawyer Blog has discussed these matters in earlier articles. I have been involved in many cases where an estate fiduciary needed to evict beneficiaries from estate houses. Continue reading

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Contesting a Will in New York involves many different issues. The validity of a Will must be challenged on various specific grounds. The New York Probate Lawyer Blog has discussed these grounds in many prior articles.

One of the basic allegations in a Will dispute is that the document was not properly executed. Estates, Power and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”, provides the statutory requirements for Will execution. These rules include the need for a written document that is signed by the testator at the end and witnessed by two individuals. Continue reading

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