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Article 81 of the Mental Hygiene Law (“MHL”) is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. The New York Probate Lawyer Blog has posted many discussions regarding the process of having a Guardian appointed for an incapacitated person.

The statute provides that the Court may only appoint a Guardian after the Court has conducted a hearing (MHL §81.11). At the hearing, the parties can “present evidence” “call witnesses”, “cross examine witnesses” and be represented by an attorney. Also, the statute requires that the Court hearing take place in the presence of the person who is alleged to be incapacitated. The most essential element in the Guardianship case is typically whether a person is incapacitated. Incapacity is defined in MHL § 81.02 which sets out the basic criteria for a Guardianship appointment. Continue reading

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The estate of a New York decedent contains many different types of assets. One of the most important items of ownership in an estate is real estate. These interests commonly constitute one of the estate’s most valuable assets. Since real estate holdings are so valuable and because the laws concerning real estate interests can be complex, estate executors and administrators can be engulfed by the need to resolve property issues during estate administration.

The New York Probate Lawyer Blog has had many posts discussing real estate issues that have arisen during the course of estate proceedings. One very common example of these issues occurs when the decedent dies and his residential home is also occupied by other family members. While the other family members have no title interest in the property, they often do not want to vacate the home where they lived with the decedent for many years. In these cases the estate fiduciary needs to have the family members move so that the property can be sold and the proceeds distributed to estate beneficiaries. When these differing interests collide, the result is that estate litigation in the Housing Court or Surrogate’s Court is needed to resolve the dispute. Continue reading

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A New York Executor and Administrator each have many fiduciary obligations. Earlier posts in this blog have discussed the need for estate representation to identify and collect the assets of an estate.

Estate Lawyers in New York are often asked by clients to provide guidance regarding real estate interests that are owned by a decedent.  Many times the value of the real property that is involved constitutes the largest asset of an estate.  Such property can take many different forms.  The decedent may have owned a single family home or may be the owner of a multiple unit property which contains residential tenants that were paying rent.  There are also situations where commercial property was owned as part of a decedent’s business and is included among his assets. Continue reading

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Selecting the proper fiduciaries in estate planning is an important aspect of the planning process. When an individual creates a Last Will or Trust, the Executor or Trustee is the person who is given the responsibility to carry out the creator’s plan and protect the creator’s assets.

The fiduciary has many different responsibilities which include safeguarding and investing assets and paying income and principal to named beneficiaries. A person who is nominated and acts as an executor or trustee owes fiduciary duties to the beneficiaries. Sometimes the interests of the beneficiaries may be in conflict. For instance, an income beneficiary of a trust will want the trustee to invest in high income producing assets while a beneficiary who has an interest in the principal or trust remainder may want investments that produce lower income but higher long-term growth. The trustee must balance the interests of the beneficiaries and often is guided by the terms of the Will or Trust agreement regarding the manner in which he proceeds. Continue reading

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Many court cases and commentaries have focused on the use and problems associated with a Power of Attorney. In New York Article 5, title 15 of the General Obligations Law contains the statutes regarding a Power of Attorney (GOL Section 5-1501 seq.). The Power of Attorney can be a useful means by which a person can designate an agent to help with financial matters. A Power of Attorney should not be confused with a Health Care Proxy which is provided for by Public Health Law Section 2981. A Health Care Agent is limited to only health care decisions.

The issues that arise with agents or attorneys in fact who are named to make financial decisions is typically two-fold. First and foremost is that the agent may abuse his power over another’s finances and either act in manner that is not in the principal’s best interest or act in a manner to take advantage of the power for the agent’s self-interest. The second issue that often arises is that the agent fails to make or keep an accounting of his actions and transactions. As a result, financial decisions and payments that may be well founded can appear to be suspicious because accurate records and receipts of the amounts and purposes for the transactions are not available. Continue reading

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When a person dies and leaves a Last Will and Testament, the typical course to follow is to probate the Will.  This Blog has published many posts concerning the probate process.  The Will is filed with the Surrogate’s Court in the county where the decedent had his primary home.  A Probate Petition is also filed with the Court which asks the Court to admit the Will to probate.  Essentially, the request is to have the Court validate the document so that its provisions can then be followed in distributing the decedent’s estate assets.

After a Will is admitted to probate, letters testamentary are issued to the nominated Executor. In the probate proceeding, the Court issues a Citation which provides official notice to the decedent’s next of kin asking them to advise the Court as to whether they intend to object to the Will. Continue reading

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Estate Planning for New Yorkers can be a very complex process.  When considering a testamentary plan, it is common to immediately think about estate taxes.  While such taxes are imposed in the form of New York State estate tax and the Federal estate tax, most estates are not subject to paying such taxes.

Earlier posts in the New York Probate Lawyer Blog have discussed the fundamental need to understand the nature and ownership of assets. A Last Will and Testament is going to control only the assets owned by a person in his name alone. Other assets that are owned jointly with persons with a right of survivorship are distributed to the surviving co-owners automatically upon the first party’s death. This is also true with assets that have designated beneficiaries such as life insurance and retirement accounts in the form of IRA’s and 401K’s. Continue reading

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Estate Administration in New York involves the collection and distribution of the decedent’s assets. The New York Probate Lawyer Blog has discussed the many different types of assets that may be a part of a decedent’s estate. These assets include bank accounts, stocks and bonds, tangible personal property, and real estate. The estate fiduciary, whether it be an Executor or Administrator, has a fiduciary duty to find all of the decedent’s assets so that they can be protected and ultimately liquidated and/or paid out to the estate beneficiaries. Another type of asset that sometimes can be troublesome is a cooperative apartment. Continue reading

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New York Estate Lawyers frequently refer to Estates, Powers and Trusts Law (EPTL) Section 3-2.1 regarding the formalities required with regard to execution and witnessing of a Last Will. When a petition is filed with the Surrogate’s Court to have a Will admitted to probate, the statutes require that notice of the proceedings be given to the decedent’s next of kin (“distributees”). As discussed in many of the posts in the New York Probate Lawyer Blog, the distributees have a right to file Objections to the Will. In the event the Will is denied probate, then the decedent’s estate is distributed to the heirs as if the decedent died intestate. There are a number of basic Objections that can be set forth in Estate Litigation regarding a Will. These objections include lack of due execution, lack of testamentary capacity, undue influence and duress or coersion. A Will Contest is the part of the probate process where the issues regarding these various objections are finally determined.

The various grounds upon which to base a Will Contest do not generally involve other issues concerning the enforceability or interpretation of Will provisions. A recent case entitled Estate of Attea, decided by Erie County Surrogate Barbara Howe on June 17, 2015, reflects the limited issues involved when determining a Will’s validity. Continue reading

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Planning an estate and advance directives involves a considerable amount of time and review so that the desired result is achieved.  The New York Probate Lawyer Blog has discussed the importance of the many considerations when preparing planning and other documents.  The papers that may typically be a part of a plan include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust.  As Estate Planning Lawyers recognize, a person must review and understand his assets so that the dispositions specified in the documents are effective to carry out the creator’s plan.  For example, if a person is creating a Last Will and desires to devise a certain parcel of real estate , it is important to know the manner in which the real estate is owned.  If the real estate is titled in a joint ownership with rights of survivorship in another person, then the Last Will cannot control its disposition as long as the other joint owner is alive.  As discussed in earlier blog posts, a Last Will generally only controls assets owned by a person in his name alone.

In addition to knowing and understanding the nature of a person’s assets and the title ownership of these items, a person also must carefully determine and describe the recipient of the beneficial bequests. The language used in a Last Will or Trust must correctly and specifically describe the intended beneficiary and the share or amount such beneficiary is to receive. When the dispositive language in a document is ambiguous or unclear, it is common that Estate Litigation occurs to resolve these ambiguities. Continue reading

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