New York Probate Lawyer Blog

April 30, 2024

Living Trusts May Involve Many Legal and Procedural Issues

A typical estate plan includes a number of commonly recognized documents. First and foremost is a Last Will and Testament. As discussed in many posts in the New York Probate Lawyer Blog, a Will controls the disposition of assets held in a decedent’s name alone. Thus, assets such as joint bank accounts or items which have designated beneficiaries such as retirement accounts and life insurance pass directly to the other named party. The terms of a Will do not control these assets. Therefore, any estate plan should include careful scrutiny as to the title of assets and whether named beneficiaries have been added.

When a person dies, his Will is filed with the Surrogate’s Court along with a petition for probate. When a Will is admitted to probate by the Court, the terms of the Will become effective.

It has become more popular recently to include the creation of a Living Trust as part of an estate plan. Living Trusts are also referred to as grantor or revocable trusts. The basic format of a Living Trust is that assets owned by a person in their names are presently transferred into the trust. Thus, real estate is placed in the name of the trustee of the trust as well as bank accounts and other items. The intention is to put a person’s assets into a Living Trust in order to avoid probate. When a person dies, the terms of the trust can be effectuated expeditiously without having to wait for the probate process to be conducted in the Surrogate’s Court. Also, the Living Trust can have provisions for the management of property if the grantor becomes ill or disabled.

April 16, 2024

Probating A New York Will – A Complex Process

by Jules M. Haas

A Last Will and Testament is a document meant to memorialize a person’s intentions regarding the disposition of his property after death. The various rules and statutes relating to the probate process are typically strictly adhered to by the Surrogate’s Court. This is because if there are any variations or discrepancies, a decedent is no longer around to explain what was intended. The Surrogate’s Court is the place where most Wills are filed to commence probate.

The New York Probate Lawyer Blog has published many articles concerning the probate of a Will as well as other topics, such as intestate distribution and estate settlement. As many of these articles discuss, the process is commenced by filing a Petition for Probate with the Court and seeking the granting of Letters Testamentary. The Petition contains a fair amount of information, including the name and address of the petitioner, the decedent’s next of kin (“distributees”) and Will beneficiaries. Information is also provided regarding the date of the Will, the names of the Will attesting witnesses and the estimated value of the probate estate.

For the most part, the distributees have a right to challenge or contest a Will. If the document is determined to be invalid, and the decedent is found to have died without a Will, the estate is distributed to the intestate heirs.

March 26, 2024

New York Estate Planning May Not Prevent Estate Litigation

by Jules M. Haas

Estate planning in New York is essential for the efficient settlement of a decedent’s estate. The New York Probate Lawyer Blog has published many articles regarding planning an estate. The various documents which may be prepared as part of a plan include a Last Will and Testament, Living Will, Health Care Proxy, Power of Attorney and Living Trust. In short, these papers can be described as follows:

Last Will and Testament: contains various provisions detailing a testator’s intentions and directions for the disposition of assets which are owned by a person in his name alone. It is essential to remember that assets which are held jointly with others or have named beneficiaries, such as a life insurance policy, are paid directly to the designated surviving parties and are not controlled by a Will.
Living Will: has provisions which explain a person’s intention and desire not to be artificially kept alive if their ability to live is intrinsically lost such that they are brain-dead.

March 14, 2024

The Appointment of an Estate Administrator Can Be Contentious

by Jules M. Haas

Estate planning in New York presents many benefits for settling an estate. The foundation for any plan is a Last Will and Testament. This document allows a person to memorialize in writing his intentions and desires regarding the disposition of estate assets. Provisions can be made for bequests of specific property to individuals and various shares of an estate can be allocated among family and friends. In effect, a Will allows for a written enforceable declaration by a testator regarding distribution of assets.

Although a Will needs to be filed with the Surrogate’s Court and be admitted to probate, in most instances the probate process is not complicated by Will contests or other types of estate litigation. The New York Probate Lawyer Blog has published many articles concerning estate planning, probate and estate settlement.

Another important advantage of preparing a Will is the designation of an executor. The Surrogate’s Court routinely accepts a testator’s nomination unless specific wrongdoing or other impropriety is shown by an objectant. A nominated executor can be a family member or a friend or a professional advisor. Generally, only non-resident aliens are excluded.

February 29, 2024

What Happens When a Co-Executor Dies – Problems with Co-Fiduciaries

by Jules M. Haas

In many instances, there is a possibility that co-fiduciaries may be appointed to represent an estate. Let’s begin by examining intestate administration. When a decedent dies without a Last Will and Testament, the appointment of an estate administrator is determined in accordance with Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration.” This statute provides that letters of administration are to be granted to family members with priority to a surviving spouse, and then children, and then other more distant relatives.

In particular, since a decedent may have many children, there is a real likelihood that more than one child may wish to serve as administrator. It is not uncommon in these instances for litigation to occur in the Surrogate’s Court with competing petitions for appointment. Many times, a matter ends up being resolved with the appointment of co-administrators.

When a decedent leaves a Last Will, the provisions of the document may contain the nomination of co-executors. Unless one of the named parties declines or is unable to act, the Surrogate’s Court will appoint co-executors to administer and settle the estate.

February 15, 2024

Fiduciary Responsibility Never Ends – New Areas of Concern with AI Generated Material

by Jules M. Haas

A decedent’s estate consists of many different types of interests and assets. These items may include bank accounts, security or other financial accounts, real estate interests, various retirement accounts such as individual retirement accounts, pensions and 401(k) plans, and business interests in partnerships or limited liability companies. There can also be interests in creative works, trademarks and copyrights.

At the inception of an estate, a determination must be made as to whether a Last Will and Testament exists which needs to be probated. In the event there is no Will, then letters of administration would be required to settle the estate under the intestacy statutes. The appropriate proceedings must be filed in the Surrogate’s Court. In either case, a fiduciary is needed to have the authority to handle the estate assets. Assets that are owned by a decedent in his name alone pass through the estate. When an asset has a named beneficiary or a joint owner with survivorship rights, these items are distributed directly to the other named party.

A fiduciary, whether an executor or administrator, has various powers and authority regarding estate affairs. The Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ Powers” provides a detailed list of powers. These include powers to take possession of estate property and to sell or dispose of such property.

February 1, 2024

The Intersection of Article 81 Guardianship and a Will Contest (With a Little Artificial Intelligence Thrown In)

by Jules M. Haas

It is not uncommon that a person who dies was the subject of an Article 81 Guardianship proceeding prior to death. The Guardianship statutes are contained in Article 81 of the Mental Hygiene Law. A Guardian for personal needs and property management will be appointed where a person is determined to be incapacitated. Incapacity is defined in MHL Section 81.02 and essentially requires that a person is likely to suffer harm because they are unable to provide for their personal or property needs and they cannot “understand and appreciate” their disability (81.02(b)). It should be recognized that the guardianship provisions rely on an assessment of functionality, or the extent to which a person is able to handle activities of daily living, as opposed to a strict medical or psychological diagnosis.

On its face, it would appear that a determination of incapacity and the appointment of a Guardian would automatically result in a lack of testamentary capacity for such person to execute a Last Will and Testament. However, such is not the case. To begin with, MHL 81.29(b) specifically provides that, where a guardian is appointed, it is not conclusive evidence that someone does not have capacity to dispose of an estate by a Last Will. There are additional considerations as well.

This issue arose in a recent Brooklyn estate case entitled Probate Proceeding, Will of Phylliscita Ismay Samuel, decided by Brooklyn Surrogate Bernard J. Graham on January 11, 2024. In the Surrogate’s Court case, the Court was asked to grant summary judgment and deny probate to a Will, which was executed following a determination of incapacity and the appointment of a Guardian. The party moving for summary judgment relied on this determination to seek the summary rejection of the Will. The Court denied the motion and found that issues of fact existed requiring a trial. The Court’s ruling included recognition that the determination of capacity in a Guardianship case is different from the testamentary capacity required to execute a Will. Article 81 is a test of functionality while testamentary capacity involves just understanding a person’s property, the natural objects of one’s bounty and that the person is entering into a Will.

January 15, 2024

The Benefits and Limits of a New York Article 81 Guardianship

by Jules M. Haas

Article 81 of the New York Mental Hygiene Law provides the various statutory provisions for a New York Guardianship. Typically, the statute is utilized to obtain a guardianship over another person’s financial affairs and personal needs. The subject of these proceedings is referred to as an alleged incapacitated person (“AIP”).

The procedures set forth in the statute require that a petition be filed. MHL Section 81.08 entitled “Petition” lists the information which must be contained in the Guardianship petition including a description of the AIPs functional ability. A key part of the Guardianship law is that a Court will need to be shown the ability of a person to handle various activities of daily living. These activities include the ability of a person to engage in financial matters and also to handle personal needs such as seeking medical attention, and maintaining a safe and secure living environment. Basic needs such as cleanliness and personal hygiene are important considerations. A Guardianship ensures that a person who is functionally incapacitated and at risk is protected from harm.

The Guardianship statute is also very particular that a Court only impose the least restrictive control by a Guardian. An AIP’s freedom and choice are a paramount consideration for protection by the Court.

December 20, 2023

The Domicile of a Decedent Can Affect Estate Settlement

by Jules M. Haas

The New York Probate Lawyer Blog has published many articles concerning estate settlement. Factors that can affect a New York estate are enumerable. In the first instance, a determination must be made as to whether a Last Will and Testament needs to be probated. If no Will exists, than an intestate administration must be commenced. Different aspects and procedures apply to these types of proceedings and the filings which are required by the Surrogate’s Court. Also, the rights of potential estate beneficiaries are determined either by the provisions of a Will or the statutory inheritance directives in the Estates Powers and Trusts Law Section 4-1.1 entitled “Decent and distribution of a decedent’s estate.”

Another very important consideration affecting all estates concerns the issue of which jurisdiction’s laws control matters regarding estate administration. The topic referred to is known as “domicile.” Domicile is basically a determination of the place where a person or decedent has their primary home. A person may have many residences but can have only one domicile. This Probate Blog has published previous posts concerning this issue.

For example, a person who dies and has a New York domicile will have his estate controlled by the laws of New York, for the most part. Determining a person’s domicile is not always easy. Someone may have an apartment or house in New York and also Florida, or another state or country. Domicile is a matter of where a person intends to have his primary home. However, there are a number of independent factors which go into the determination, such as where a person filed local taxes, the location of their employment, where their car was registered and driver’s license was issued.

December 7, 2023

New York Beneficiary Designations on Assets May Complicate Estate Settlement

by Jules M. Haas

There are many aspects to the settlement of a New York estate. First and foremost, there needs to be a determination as to whether the decedent had a Last Will and Testament or died intestate without a Will. The existence of a Will provides provisions for the distribution of a decedent’s assets. Alternatively, when no Will is found, the New York intestacy statutes provide the provisions as to whom is entitled to receive the estate distributions. The New York Probate Lawyer Blog has published many articles concerning the probate process and intestate administration.

Many times a decedent leaves assets which do not pass through his estate. Instead, items such as joint bank accounts, or other jointly owned assets with rights of survivorship will be transferred by operation of law on death to the surviving joint owner. Additionally, various assets may have a designated beneficiary such as life insurance and retirement accounts like IRAs and 401k plans. Upon death, these items also are paid directly to the named beneficiary.

Problems may arise when a person designates a beneficiary of an asset and the designated beneficiary predeceases the decedent. If there is no designation of a secondary or substitute beneficiary, then an issue arises as to who is the beneficiary of the asset. If it is determined that there is no substitute payee, then the fund may end up as an estate asset to be controlled by a Will or the intestate statutes.