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The probate of Wills in New York can be very complicated.  The Estates, Powers and Trusts Law (“EPTL”) Section 3-2.1 entitled “Execution and attestation of Wills; formal requirements” provides the basic requirements for the proper execution of a Will.  The New York Probate Lawyer Blog contains many articles discussing the basic Will execution requirements which include items such that a Will generally must be in writing, signed by the testator at the end and there needs to be at least two attesting witnesses.

Estate Lawyers in New York City sometimes prepare Wills that contain provisions known as “No Contest” clauses or “In Terrorem” clauses. Essentially, these provisions that can appear in a Last Will or a Living Trust provide that a beneficiary will forfeit his bequest or interest in the event he unsuccessfully challenges the validity of the document. EPTL Section 3-3.5 entitled “Conditions qualifying disposition; conditions against contest; limitations thereon” sets forth the statutory provisions regarding these types of clauses. Continue reading

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The settlement of a decedent’s estate can be viewed as encompassing three stages. Estate Lawyers in New York City are familiar with this process. The first step involves the appointment of the estate representative. When a decedent leaves a Last Will and Testament the Will is filed with the Court and submitted for probate. Once the Will is admitted to probate, the Court appoints an Executor. In situations where the decedent dies intestate (without a Will), a proceeding for Letters of Administration is presented to the Court and the Court then appoints an estate Administrator.

After a fiduciary is appointed, the second stage of the estate settlement process involves the collection of estate assets and the payment debts, taxes and other obligations. As discussed in earlier posts in the New York Probate Lawyer Blog, both of the above stages can be filled with complex issues such as Will Contests and Surrogate’s Court Litigation regarding the assets and obligations of a decedent. Continue reading

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In New York City it is very common that a person may own a cooperative apartment.  Essentially, the ownership of a co-op apartment has two aspects.  A person is a stockholder of and owns shares in the cooperative corporation.  The vested interest in the corporation provides a person with the right to be the lessee in a proprietary lease for his apartment.

As most cooperative apartment dwellers know, the co-op owner is subject to many corporate rules and regulations that are contained in various forms such as the proprietary lease, the corporation’s by-laws and the house rules. Perhaps the most well known rule or restriction regarding these apartments is that the ownership rights cannot be sold or transferred without the express approval of the corporation. The general law in New York provides that cooperative corporations have broad and usually unreviewable discretion to approve or disapprove of a prospective purchaser or transferee. While the corporation cannot engage in discriminatory conduct, it can disapprove a transaction for any reason and generally does not need to disclose the reason for such rejection. Continue reading

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An Executor or Administrator in New York has a duty to discover and collect all of the assets that rightfully belong to a decedent’s estate.  If the estate fiduciary fails to perform this task properly the estate beneficiaries may claim that there was a breach of a fiduciary duty.

Identifying and collecting estate assets requires that the fiduciary act diligently and pursue proper avenues to complete his obligations. The New York Probate Lawyer Blog has previously discussed some of the Estate Litigation procedures that can be used to recover estate property. For example, Surrogate’s Court Procedure Act (SCPA) Section 2103 provides a very common method to obtain estate assets. This statute is entitled “Proceeding by fiduciary to discover property withheld or obtain information.” When an executor or administrator has information that a third party has possession of an asset that belongs to an estate, the fiduciary can file a petition with the Surrogate’s Court to obtain the property. SCPA Sections 2103 and 2104 contemplate two types of Court proceedings. First, the statute allows the fiduciary to obtain information from the third-party by deposition questions and paper discovery as to whether the person is actually in possession of estate property. If so, the statute then provides for a proceeding in which the actual ownership of the property can be determined. Continue reading

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New York Estate Settlement can be complicated by many different factors.  After a person dies a fiduciary such as an Executor or Administrator will be appointed to handle estate affairs.  The New York Probate Lawyer Blog has provided numerous posts discussing the procedure to appoint an estate fiduciary.  In short, where a decedent leaves a Last Will, the Will is submitted to the Surrogate’s Court for probate.  When the Will is admitted to probate an Executor is appointed who is responsible for estate settlement.

When a decedent does not have a Last Will he is deemed to have died intestate. An Administrator is appointed for intestate estates. Typically, the Administrator is one or more of the decedent’s next of kin called distributees.  The distributees, according to their relation to the decedent, have priority to be appointed as an Administrator. Continue reading

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When a person dies, one of the first tasks that a family and fiduciary face is to take control over the decedent’s residence. New York estate lawyers are aware that accessing and securing a decedent’s home can often be difficult and complicated.

To begin with, when a decedent lived alone and passes away in their home premises, the police department may seal the apartment to prevent unwanted intruders. When an apartment is sealed it would be necessary to make an application to the Surrogate’s Court to allow the apartment to be searched for the existence of a Last Will or insurance policies. Continue reading

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A Supplemental Needs Trust (SNT) is an important mechanism to provide financial security for persons with disabilities. The New York Probate Lawyer Blog has posted a number of articles regarding the requirements and benefits of a SNT.

Essentially, a SNT allows for funds to be held for the benefit of a person who is receiving government benefits such as Medicaid or Social Security Disability. Since the trust beneficiary can only receive benefits from the trust at the full discretion of the Trustee, the creation and existence of the trust will not diminish or effect the benefits the beneficiary receives from governmental sources. Also, there are guidelines that the Trustee must follow in making distributions from the SNT. Continue reading

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Estate planning is an essential part of making certain that a person’s assets are managed and distributed in accordance with one’s intentions. New York Estate Lawyers counsel clients with regard to the preparation and execution of planning documents such as Last Wills, Living Wills, Health Care Proxies, Powers of Attorney and Living Trusts.

Once a person takes the time and effort to prepare the necessary planning papers it is important that the originals of the signed and notarized documents be maintained in a safe and secure location. Also, the papers should be stored in a place where they can be found and utilized should the occasion arise. Continue reading

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One of the more common problems that is encountered by estate Executors and Administrators is the recovery of a decedent’s property from third parties. New York Estate Attorneys frequently need to counsel fiduciaries regarding the Court procedures to obtain assets that belong to an estate. I have represented fiduciaries in numerous cases to recover property.

Very often an Executor or Administrator is confronted with a situation where a house or apartment that was owned by the decedent continues to be occupied by persons’ after the decedent dies. Moreover, such occupants refuse to vacate the property which prevents the Executor from selling the property and completing estate settlement. Continue reading

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All Estate cases involve determining the next of kin of the decedent. In a probate proceeding where a person dies and leaves a Last Will, the estate rules and procedures mandate that the decedent’s distributees (next of kin) be provided with official notice of the case. New York Estate lawyers have experience in preparing the probate petition and affidavit of kinship that the Surrogate’s Court wants to review before admitting a Last Will to probate.

In many instances a decedent dies intestate meaning there is no Will. As discussed in earlier posts in the New York Probate Lawyer Blog, where a person dies intestate, his estate is distributed to his next of kin. However, proving a person’s kinship presents many problems. Quite often a decedent is not survived by a close relative such as a spouse or child or even a sibling or niece or nephew. It may turn out that a decedent’s closest relative is a cousin. Kinship proceedings or kinship hearings are very common in what are known as cousin cases. Continue reading

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