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
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
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
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
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
Wills in New York are required to be executed in accordance with the statutory guidelines. Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”, sets forth very definite rules for Will authenticity. For example, a Will generally needs to be in writing and signed by the testator at the end of the document. There also must be two witnesses to the execution. The New York Probate Lawyer Blog has published many articles discussing the rules and other issues concerning the making and signing of Wills.
The Surrogate’s Court strictly adheres to the rules regarding Will execution. The Court wants to follow the statutory directions and be certain that the Will that is probated is authentic. There are times when the original of a decedent’s Will cannot be located. This situation was discussed in a recent case decided by Manhattan Surrogate Nora Anderson on December 1, 2017 entitled Matter of Raleigh. In Raleigh the decedent signed his Will in an attorneys office in New Jersey. The original Will was then mailed to the attorney’s office in New York where the attorney put the Will in the client’s file and stored it with a storage company. Continue reading
The appointment of a Guardian in New York is provided for in Article 81 of the Mental Hygiene Law (MHL). There are two areas in which a Guardian can be needed. A person who is found to be incapacitated may need a Guardian for personal needs. A personal needs Guardian will have the authority to make decisions regarding health care, living arrangements and other personal decisions regarding the AIP’s affairs.
A Guardian for property management has the power to collect and control the assets of the incapacitated person. These assets may include bank accounts, brokerage accounts and real estate. It is the Guardian’s duty to collect these assets or place these assets under the Guardian’s control and use them for the person’s best interests. Continue reading
When a Last Will is offered for probate, the Court needs to be provided with an array of additional information. One of the most important areas that the Court needs to know about is the identity of the decedent’s next of kin. These individuals are known as distributees. The Surrogate’s Court requires a complete list of distributees since these individuals must be provided with notice regarding the probate filing.
The New York Probate Lawyer Blog has published many articles regarding the probate of a Will and the notification of next of kin. The reason these persons must be notified is due to the fact that if the Will is found to be invalid, the decedent’s distributees would inherit the estate. Without a valid Will, the estate would be distributed according to the laws of intestacy. When a decedent’s distributees feel that a Will is not valid, they have a right to Object to the Will. These Objections result in a Will Contest and estate litigation in the Surrogate’s Court. Continue reading
The New York probate process is designed so that an Executor can be appointed to handle estate affairs. Until an estate Executor is granted letters testamentary by the Surrogate’s Court, no one has the legal authority to act on behalf of the decedent’s estate. Sometimes, preliminary letters testamentary can be obtained.
Obtaining a duly authorized fiduciary is important since such person can collect bank accounts, pay estate expenses and engage in other transactions to facilitate estate settlement. Sometimes, the terms of a Will provide that a share of the estate is to be paid to a Trustee. This type of trust is called a testamentary trust. The terms of the trust are set forth in the Will provisions. In order for the transfer of assets from the estate to the trust to occur, a trustee must be appointed to handle the trust administration. Continue reading
Estate planning in New York involves the preparation of a number of documents including a Last Will and Testament. It is not unusual that during the course of a lifetime a person prepares and executes a series of Wills.
It is a common practice that a Will should be updated periodically. There are many reasons for such updates. It may be that early versions of a Will contain trust and guardianship provisions for a person’s minor children. Once the children have grown older there would no need for these provisions. In this regard, a person’s testamentary plan and intentions may change over time. A testator can change the dispositive provision of his Will as many times as desired. Sometimes the individuals named as beneficiaries may predecease the testator or need to be eliminated due to personal preferences. Continue reading
New York Probate Lawyer Blog