New York Probate Lawyer Blog

August 9, 2017

A New York Will May Be Revoked If The Original Is Missing

Estate planning is an important part of overall financial management. The preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust can provide a clear expression of a person’s desires regarding property disposition and personal affairs.

Once a Last Will and other documents are prepared and executed, it is important to safeguard them. Such papers can be maintained in a secure filing cabinet or personal safe. Sometimes these papers are held in the office of an attorney or placed into a safe-deposit box. While a safe deposit box may limit or inhibit their accessibility in situations of death or disability, the papers are secure. Nevertheless, alternative methods of storing estate planning papers may be more efficient for having them accessible when needed. Continue reading

August 2, 2017

A New York Estate Proceeding To Recover Property Must Relate to Estate Assets

by Jules M. Haas

One of the primary duties of an estate Executor or Administrator is to collect estate assets. Most of the time this activity is not complicated. For example, a fiduciary may just need to close the decedent’s bank account or brokerage account and deposit the funds into the estate bank account.

Sometimes this process can be more complicated, especially when the decedent’s assets are being withheld by a third party. This claimant may assert that he owns the property and that the decedent has no right to recover it. In other cases, the claimant may deny having the property in his possession. Continue reading

July 26, 2017

New York Administrators Need To Identify And Give Notice To All Distributees

by Jules M. Haas

When a person dies without a Last Will and Testament he is said have died intestate. Since there is no Will which provides for distribution of the estate assets, the decedent’s estate is distributed according to the intestacy laws. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, provides the list of priority of persons who have a right to inherit the intestate estate. The New York Probate Lawyer Blog has published many articles concerning the estates of persons who die without a Will.

The fiduciary who is authorized to handle such an estate is known as an Administrator. In order to have an Administrator appointed for an estate, a petition for letters of administration is filed with the Surrogate’s Court. One of the items that must be provided in the petition is the name and address of all of the decedent’s distributees. These are the individuals who have the right to receive a share of the estate. Continue reading

July 19, 2017

New York Estate Discovery Cases Require That Facts Support The Claim

by Jules M. Haas

One of the statutes that is most commonly utilized by an estate executor or administrator is Surrogate’s Court Procedure Act (SCPA) Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information.” This provision allows the estate fiduciary to commence a proceeding in the Surrogate’s Court whereby information can be obtained from a third party that is suspected of withholding property belonging to a decedent.

The more common name for this type of matter is a “turnover proceeding”. The third party is being asked to turn over to the fiduciary certain property that the decedent owned. There have been a number of articles concerning this process in the New York Probate Lawyer Blog. Continue reading

July 12, 2017

A New York Probate Proceeding May Involve A Waiver and Consent to Probate

by Jules M. Haas

There are numerous aspects to the probating of a Last Will in New York. When a person dies and leaves a Will the final disposition of his estate cannot take place until a probate proceeding is completed. Such proceeding involves the filing with the Surrogate’s Court of the original Will along with other papers such as an original death certificate and a probate petition. Typically, the person named as the Executor in the Will files for probate.

Probate essentially means that the Surrogate’s Court approves and validates the Will and the directions for the distribution of the estate contained in the document. The New York Probate Lawyer Blog has posted many articles regarding Wills and Probate. Continue reading

July 5, 2017

A New York Will Needs To Be An Original For Probate

by Jules M. Haas

Estate Litigation in the Surrogate’s Court often involves issues that effect many decedent’s estates. These problems occur over and over again. One such problem area concerns the attempt to probate a Will where the original document cannot be located.

When a person signs a Last Will great consideration and care should be given to storing the Will in a safe location. Sometimes the Will is maintained at the office of the estate attorney who prepared the Will and supervised its execution. More often, the testator takes the Will home and keeps it with other papers. On occasion, a Will is kept in a safe deposit box at a bank. Problems arise when a person dies and the original Will cannot be located. While a copy of the Will may be available, there are strict rules regarding the probate of a copy. The New York Probate Lawyer Blog has discussed this issue in earlier posts. Continue reading

June 28, 2017

New York Letters of Administration May be Contested

by Jules M. Haas

When a person dies without a Last Will he is said to have died intestate. In these types of estates, an application or petition needs to be filed with the Court for the issuance of Letters of Administration.

Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of priority for granting letters of administration”, lists the persons who have the right to be appointed as the estate administrator. The decedent’s surviving spouse has the initial right of appointment followed by the decedent’s children. Continue reading

June 21, 2017

New York Estate Beneficiaries May Be Responsible For Rental Use of Estate Real Property

by Jules M. Haas

Many estates in New York have assets that include real estate. The most common situation is that a decedent owned a single or multi-family home. Very often the home was the decedent’s residence at the time of death. Additionally, other family members may have been living in the home. The problem that is encountered is that the real estate residence needs to be sold or transferred as part of the settlement of the estate. The continued occupancy of the residence by family members can prevent the sale or transfer.

The New York Probate Lawyer Blog has discussed this issue in a number of earlier posts. There are a number of avenues that an estate executor or administrator can follow to seek possession of the property and evict the remaining occupants. A turn-over proceeding can be commenced in the Surrogate’s Court. Also, it may be possible to obtain an eviction in the local housing or Landlord-Tenant Court. These proceedings, whether brought in the Surrogate’s Court or the Landlord-Tenant Court, seek to have occupants removed from estate property. Continue reading

June 14, 2017

A New York Executor or Administrator Can Be Removed For Improper Conduct

by Jules M. Haas

A person who is appointed as an estate Administrator or Executor is empowered to perform many tasks on behalf of a decedent’s estate. Generally, the fiduciary identifies and collects assets; resolves and pays the decedent’s debts and obligations; satisfies estate administration expenses such as estate and fiduciary income taxes; and provides an accounting and distributes the net estate to the beneficiaries. The New York Probate Lawyer Blog has published many articles describing and examining the estate settlement process.

Along with their administrative powers, fiduciaries also have many obligations sometimes referred to as fiduciary duties. In cases where there is a breach of fiduciary duty, the Surrogate’s Court can revoke the letters of appointment and remove a fiduciary from office. Continue reading

June 7, 2017

New York Will Contests Require The Disclosure of Information and Documents

by Jules M. Haas

Will Contests in New York are part of a probate proceeding. When a Last Will is filed for probate, official notice must be given to the decedent’s distributees (next of kin). The distributees have a right to contest the Will. In the event the Will is found to be invalid the distributees would inherit the estate pursuant to the laws of intestacy.

The New York Probate Lawyer Blog contains numerous articles concerning the discovery process in contested probate proceedings. Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required” contains provisions that allow prospective Objectants to obtain documents and testimonial discovery before having to file formal Will Objections. Continue reading