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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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The preparation of a Last Will is an essential part of estate planning. However, once a Will has been finalized and signed it is the final document that exists to reflect a decedent’s intentions regarding the disposition of his estate.

After the testator’s death, the Last Will that was created must be filed with the Surrogate’s Court. Such filing is the start of the Probate Process by which the Will is admitted to probate and its terms are validated. Continue reading

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As the year 2015 comes to an end, it is a good time to revisit some basic planning goals.  Much has been written about Advanced Planning.  The New York Probate Lawyer Blog has discussed this topic in earlier posts.  Essentially, Advanced Planning involves a number of considerations.  Concerns regarding lifetime disabilities and incapacity may be addressed by preparing documents such as a Durable Power of Attorney, a Living Will, a Health Care Proxy and a Living Trust. Continue reading

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Estate Settlement involves dealing with many different types of assets. New York City estate lawyers routinely find that a decedent was the owner of a cooperative apartment. The ownership nature of these apartments is comprised of shares of stock that the decedent owned in a cooperative corporation. As a shareholder of the corporation the decedent would also have been the lessee in a proprietary lease that provided for the decedent to reside in his apartment. A cooperative proprietary lease sets forth the rights and obligations that exist between the shareholder-lessee and the cooperative corporation-lessor. While the decedent was an owner of the shares of stock allocated to his apartment, the lease is really in the nature of creating a landlord-tenant type of relationship. Continue reading

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A Guardianship proceeding in New York is controlled by the provisions of Article 81 of the Mental Hygiene Law (MHL).  The New York Probate Lawyer Blog has discussed in earlier posts that the New York Courts have the jurisdiction to impose Guardianship directions generally over in-State matters.  MHL Section 81.04 provides, in part, that relief can be provided for a New York State resident or a non-resident that is present in the State.  Furthermore, MHL 81.05 set forth that the proceeding is to be commenced in the county where the alleged incapacitated person resides or is physically located.

Guardianships are typically controlled by local State laws. In the past, complicated problems have arisen where Guardianship matters involve more than one State. For example, a Guardianship may have been put into place in New York. If it is decided that it would be best to move the incapacitated person to another State such as New Jersey or Florida, the problem that would be faced is whether and to what extent the new State would recognize the Guardianship determinations that occurred in New York. In many instances a new Guardianship case would need to be commenced in the new State in order to have a local Guardian appointed. Continue reading

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A New York Estate Planning attorney is familiar with the numerous issues that need to be reviewed when creating estate planning documents. Such documents include Last Wills and Living Trusts.

As pointed out in the New York Probate Lawyer Blog, a fundamental aspect in the planning process is understanding the property owned by a person and the manner in which such asset is held. For example, real estate interests can be owned by someone in their individual name or in their name as a joint tenant with another person or as a tenant in common with others. When a person dies, an asset that is owned jointly or with a designated beneficiary passes to the joint owner or designee outside of the decedent’s estate. Thus, such property would not be subject to the terms of a Last Will or the laws of intestacy. Continue reading

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Estate proceedings in New York typically involve the collection of assets that were owned by the decedent. In most cases the assets are easily identified and collected such as bank accounts or securities accounts.

As discussed in earlier posts in the New York Probate Lawyer Blog, there are occasions when third parties claim possession or title to assets that are estate property. When this happens the Executor or Administrator must commence litigation to recover these items. The starting point for this type of Court proceeding is Surrogate’s Court Procedure Act (SCPA) 2103 which is entitled “Proceeding by fiduciary to discover property withheld or obtain information”. This proceeding is generally known as a “turnover proceeding” and is used by the fiduciary to obtain information about withheld assets and to require that such assets or the proceeds of such assets be turned over to the fiduciary. Continue reading

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When a person dies without a Last Will and Testament he is deemed to have died intestate. As discussed in many earlier posts in the New York Probate Lawyer Blog, where there is an intestate decedent, a petition needs to be filed with the Surrogate’s Court seeking Letters of Administration.

The estate administrator has similar statutory powers to those of an executor where a person leaves a Will. There are numerous issues that can arise in the context of intestate administration. A recent case decided on October 9, 2015 by Brooklyn Surrogate Diana Johnson entitled Estate of Evans provides an interesting analysis of just some of the legal and factual complexities. Continue reading

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A New York Guardianship proceeding under Article 81 of the Mental Hygiene Law (“MHL”) typically requires that the Court find the alleged incapacitated person (“AIP”) to be incapacitated. The focus of the Court is on the functional abilities of the AIP and the manner in which the AIP can handle activities of daily living without assistance. These activities include the ability to feed oneself or handle necessary personal hygiene.

The Guardianship Court will also focus upon whether a person has advanced directives or alternative means by which to accommodate a disability. For example, as part of the creation of an Estate Plan, a person may have put into place a Power of Attorney, a Living Will, a Health Care Proxy or a Living Trust. These papers provide a means by which a person can have their personal needs and property management attended to after they no longer have the capacity to do so by themselves. There may also be situations where caretakers such as family members or nursing professionals may be in place to care for and monitor a person’s ongoing needs despite an apparent disability. Continue reading

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