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The planning of an estate in New York involves a number of basic considerations. Many recent articles in the news have drawn attention to the need for creating an effective plan. The New York Probate Lawyer Blog has also published numerous posts regarding the planning and administration of estates.

A recent post by Kelli B. Grant on September 16, 2016 entitled “Don’t Make These Celebrities’ Estate-Planning Blunders” points to a number of basic areas that everyone should review regarding their planning needs. In her article, Ms. Grant reports that even the rich and famous fall victim to even the most basic problems. For example, the article refers to the recent death of the rock star Prince who failed to prepare a Last Will. Ms. Grant lists other notables such as Sonny Bono, Jimi Hendrix and Pablo Picasso who also neglected to memorialize their desires in a Will. Continue reading

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Estate Planning Attorneys in New York are familiar with the creation of Last Wills and Trusts in which primary and alternate Executors and Trustees are named. One of the main advantages to creating a Will or Trust is that the creator can select the persons he wants to act as a fiduciary to carry out his asset distribution directions in accordance with his intentions.

As discussed in many posts in the New York Probate Lawyer Blog, if a person dies intestate (i.e., without a Last Will) then the estate administrator is selected according to the statutory priority set forth in SCPA Section 1001. Continue reading

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New York Estate Planning requires that the creator of a Will or Trust clearly set forth his intentions. It is very important that a Last Will or a Trust clearly state the manner in which a person wants his assets to be distributed. Serious problems arise when a Trust or a Will contain language that is ambiguous or provides for dispositions that have a negative impact on the estate plan. One way to avoid these complications is to prepare the documents using clear and direct language. Also, the creator and the estate attorney should review the papers a number of times before they are finalized and signed. However, all potential problems cannot always be prevented. A number of recent Court cases provide examples where Trust language can have a costly effect on Trust administration. Continue reading

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Estate Lawyers in New York are familiar with the various statutes that provide executors and administrators with powers to administer an estate.  Estates, Powers and Trusts Law (EPTL) Section 11-1.1 entitled “Fiduciaries’ powers”, sets forth many of the matters that a fiduciary can engage in to facilitate estate settlement.  For example, under EPTL 11.1.1, the fiduciary can invest and sell estate property.  He can also settle or contest claims either for or against the estate.

The New York Probate Lawyer Blog had posted a number of articles concerning the ability of an executor or administrator to commence proceedings in Surrogate’s Court to obtain the turn-over of estate property from third parties who are withholding the property from the fiduciary. These types of proceedings are governed by Surrogate’s Court Procedure Act (SCPA) Section 2103 (“Proceeding by fiduciary to discover property withheld or obtain information”) and SCPA 2104 (“Inquiry; trial and decree). Continue reading

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The settlement of a New York estate requires the identification of the decedent’s distributees (i.e, next of kin). In both probate proceedings and intestate administration proceedings the Court filings require that the names and addresses of all distributees be provided. This mandate allows the Court to identify all persons who are interested in the estate and to make certain that all of these persons have received proper notice of the Court proceedings. For example, in probate proceedings, the distributees may want to contest the Will by filing Objections. Continue reading

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The administration of a New York Estate involves many different tasks. The main function of an estate fiduciary such as an executor or administrator is to collect the decedent’s assets and to pay or satisfy various debts and administration expenses. There may be many complicated steps that need to be taken to fully complete or even begin the estate settlement process. The New York Probate Lawyer Blog has discussed many of these issues. Continue reading

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Surrogate’s Court cases such as probate proceedings and intestate administration proceedings have many different requirements. However, one common necessity in all these matters is that the Court must be provided with complete information regarding a decedent’s next of kin (“distributees”). Full details regarding family members is necessary so that all persons who are interested in the estate can receive proper notice regarding the Court case.

In an intestate administration proceeding the decedent’s distributees are the person’s entitled to receive a share of the estate and also may be entitled to be appointed as the administrator. When there is a petition to probate a Last Will, the distributees must be listed so that they receive proper notice regarding the probate matter and can Contest the Will if they decided to do so. Continue reading

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Planning an Estate includes the preparation of a number of different documents. These can include a Last Will, Living Will and Health Care Proxy, Power of Attorney and Living Trust. The New York Probate Lawyer Blog has discussed the importance of estate planning in many articles.

A very important aspect in the preparation of planning documents is the necessity to clearly and precisely set forth the directions and provisions regarding the disposition of property. The primary and obvious reason for clarity is so the testator’s wishes can be easily carried out by the estate fiduciary. If the Last Will is clear as to the bequests and assets that the estate beneficiaries are to receive, the goals of estate planning can be easily achieved. Additionally, unambiguous provisions in estate planning papers can help avoid controversies among beneficiaries that result in Estate Litigation. Continue reading

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The statutes concerning the appointment of a New York Guardian for a person who is incapacitated are located in Article 81 of the Mental Hygiene Law (MHL). There have been many articles posted concerning the law of guardianship in the New York Probate Lawyer Blog.

A Guardianship case is commenced by the preparation and filing of a proposed Order to Show Cause to be signed by the Court. Once it is signed, the Order to Show Cause will contain many items of information regarding the proposed guardianship hearing including the date upon which the hearing will be held, information regarding the appointed Court Evaluator and any court appointed attorney for the alleged incapacitated person (“AIP”). MHL Section 81.07 entitled “Notice” provides the form and many of items of information that need to be a part of the Order to Show Cause. The Order, when completed and signed by the Court, will then be served on the various parties who are interested in the proceeding or are otherwise specified in the Order as being entitled to receive a copy. If the Order to Show Cause and other papers are not properly served in accordance with the direction of the Court, the guardianship case cannot proceed. Continue reading

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When a person dies without a Last Will he is said to have died intestate. The handling of an intestate estate falls under the heading of an administration proceeding as opposed to a probate proceeding when a person dies and leaves a Last Will. The fiduciary of an intestate estate is called an Administrator. The fiduciary of an estate where there is a Will is typically called an Executor. While a Will usually names and identifies the persons who are to be appointed as Executors, there is no such designation by a decedent when there is no Will. As a result, reference must be made to the provisions of the Surrogate’s Court Procedure Act (SCPA). Section 1001 of the SCPA provides a list of the decedent’s next of kin and others who have a right to be appointed as the estate administrator. The section is entitled “Order of priority for granting letters of administration”. The statutory list of persons who have the priority of appointment begins with the decedent’s spouse, and then goes to children, grandchildren, parents and more distant relatives. One of the problems encountered with appointing an administrator is that there may be multiple individuals who have the same priority rights to appointment and they may be adverse to each other. These situations typically result in estate litigation in the Surrogate’s Courts where the Court is called upon to decide which person or persons should be appointed as the fiduciary.

Additionally, there are cases where the person who has the priority for appointment as administrator is opposed by other interested parties who may assert that the proposed administrator is not appropriate or is unfit to serve as the estate fiduciary. Continue reading

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