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When a person dies without a Last Will he is said to have died intestate. As in all estate matters, a paramount issue is the determination of the decedent’s next of kin or distributees. The New York Probate Lawyer Blog has published many articles discussing the need to establish heirship. In many cases the Surrogate’s Court will require that there be a Kinship Hearing to legally determine the decedent’s closest living relatives. In an intestate estate the distributees get to receive a share of the estate. Estates Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, provides the priority of heirs who are to share in the estate.

An important issue that arises in kinship cases is that where a decedent was not married, and had non-marital children, there may be problems proving kinship for the unmarried father. EPTL 4-1.2 entitled “Inheritance by non-marital children” provides the requirements needed to demonstrate that a non-marital child is an heir of the deceased father. Continue reading

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One of the fundamental aspects of estate planning and settling an estate is determining the nature of a person’s assets. When planning an estate a New York City Estate Attorney typically examines the ownership of various types of assets. For example, a bank account may be owned in a variety of ways. The account may be held in the name of a person alone or it may be in the name of the person with a designated beneficiary to receive the account funds on the death of the account holder. Additionally, the account may be held in the joint names of the person along with another person who has rights of survivorship. Thus, the account would be paid automatically to the surviving joint owner.

The issues that arise in connection with joint assets tend to fill the Surrogate’s Court calendars. The New York Probate Lawyer Blog has discussed in many posts that a Last Will only controls assets that are in a person’s name alone. Joint assets and other items such as retirement funds that have named beneficiaries are distributed outside of the Will by operation of law. Continue reading

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There are many situations where the appointment of a Guardian in New York is a necessary and helpful event.  The New York Probate Lawyer Blog has discussed various aspects of Guardianship Law in earlier posts.  Article 81 of the New York Mental Hygiene Law (MHL) contains the statutes concerning the proceedings for a Guardianship appointment.

Essentially, there are two aspects of Guardianship. The Court can grant powers to provide for someone’s personal needs such as health care. MHL Section 81.22 entitled “Powers of guardian; personal needs”, lists various personal needs powers that a guardian would have over an incapacitated person. The Court can also grant powers for property management.  MHL Section 81.21 entitled “Powers of guardian; property management”, list various property management powers that a guardian would have over an incapacitated person such as providing for managing the person’s financial affairs. Continue reading

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When a person dies without a Last Will he is said to have died intestate. The Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL) have numerous provisions that control intestate proceedings. These provisions have been discussed in a number of earlier posts in the New York Probate Lawyer Blog.

For example, EPTL Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, sets forth the persons who have a right to receive a share of the intestate estate. As expected, a spouse and children have the primary right to share the estate. If there is no surviving spouse or child, then the next individuals in line to inherit are the decedent’s parents and, if none, to brothers and sisters. The statute then continues to provide for more remote heirs. Continue reading

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New York Estate Planning Lawyers need to discuss many different issues with their clients. Among the most important considerations is the selection of Executors and Trustees. An Executor is nominated in a Last Will and Testament. Typically, the Will also provides the name of successor Executors in the event the primary nominee cannot or will not serve. A Trustee is also nominated to act in a Will provision regarding a testamentary trust. This is a trust that is created in the Will. There are also trustees that are nominated in trusts that are created outside of a Will in so-called inter vivos trusts. A Living Trust or Grantor Trust is a typical example.

When choosing a fiduciary such as an Executor or Trustee the creator should give the selection some basic considerations.  These include some understanding as to whether the person nominated will accept the appointment.  Some individuals do not want to accept the responsibility of acting as an Executor or Trustee or may not have the time to devote to this task.  When selecting a fiduciary, the creator may want to first ask the prospective nominee if they would accept the appointment. Continue reading

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Real estate holdings in an estate may constitute the most valuable estate asset. A decedent may have owned a residence such as a single or multi-family house, a cooperative apartment or a condominium unit. In view of the increase in value these assets have experienced, the disposition of such interests is very important to estate settlement and the estate beneficiaries.

New York City Estate Lawyers encounter many estate planning matters and estate administration situations where real estate must be dealt with. When planning an estate with real estate, a testator needs to consider the best or most likely disposition for the real estate upon death. In many cases, the best course to follow may be to have the real estate sold and the net proceeds distributed to the estate beneficiaries. When there are numerous beneficiaries, it can be very cumbersome for a number of different people to own the property. This type of situation often leads to disputes among beneficiaries since some may want to sell the property while others may want to keep the property for rental purposes or to live in. Continue reading

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Executors and Administrators in New York have many fiduciary duties with respect to settling an estate. Most estate fiduciaries are close family members or friends of a decedent. Typically, a person will nominate a person that they know and trust to be the Executor of their estate. Since the estate fiduciary rarely has experience in administering an estate, the Estate Lawyer is heavily relied upon to provide guidance and to implement the necessary procedures to protect the interests of the estate and the estate beneficiaries.

One of the primary duties to be performed by the fiduciary is to find and collect estate assets. The New York Probate Lawyer Blog has published earlier posts talking about this area of estate settlement. If an executor or administrator does not fulfill his obligations to safeguard assets, he may be found to have breached a fiduciary duty. Continue reading

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An estate plan in New York is very important to establish the disposition of assets. Documents that may be included in estate and advanced planning include a Last Will, Living Will, Health Care Proxy, Durable Power of Attorney and Living Trust. The New York Probate Lawyer Blog has discussed these papers in many earlier articles.

Recently, there have been a number of celebrity cases where advanced planning and estate issues have made headlines. One such case involves Sumner Redstone who was the head of Viacom which owns CBS. Mr. Redstone’s capacity to handle his affairs was called into question and his former companion began a lawsuit to enforce the provisions of his healthcare directive after she was prevented from executing her authority under the document. In an article in hollywoodreporter.com on April 27, 2016 by Ashley Cullins entitled “Judge Rules Sumner Redstone Trial Will Be Public”, it was reported that a trial regarding the companion’s lawsuit is set to begin later this month. As reported by Ms. Cullins, the trial judge has ruled that the trial will be open to the public. The Court is also set to decide whether Mr. Redstone must give testimony. Continue reading

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A Fiduciary in New York has many duties and obligations. The New York Probate Lawyer Blog has posted many articles discussing these matters. Executors, Administrators and Trustees must not breach their fiduciary duties. There are many different obligations. Generally, a fiduciary is held to a very high standard by the Courts. The reason for this view is that a fiduciary is entrusted with a tremendous amount of authority and discretion and is required to act in the best interest of the persons that are to be benefited by the fiduciary’s actions.

A fiduciary’s powers are very extensive. For example, in the case of an estate fiduciary such as an Executor or Administrator, Estates, Powers and Trusts Law (EPTL) Section 11-1.1 entitled “Fiduciaries’ Powers”, sets forth many areas in which the executor or administrator may act. Among the many powers enumerated in the statute is the power to invest estate property, to sell or mortgage property, to settle claims and to pay proper and reasonable estate expenses. In addition, a person’s Last Will or Trust can give a fiduciary powers that are not provided by the statute. Such documents can also limit or direct a fiduciary with respect to the exercise of certain powers. Continue reading

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The administration of a New York Estate requires the resolution of many different types of issues. During his lifetime a decedent may have been involved in activities that resulted in claims or debts that are unresolved at the time of death. For example, a person may have incurred credit card obligations or other credit related debt that is unpaid. In other situations, the decedent may have been an owner of a business or have had business transactions for which he was monetarily responsible.

Also after a person dies the Executor or Administrator has a fiduciary obligation to determine the decedent’s financial obligations and satisfy creditors. Of course, the fiduciary also has a duty to determine to what extent these debt obligations are valid and enforceable. Continue reading

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