New York Probate Lawyer Blog

November 19, 2014

A New York Last Will May Need To Be Construed By A Court For Asset Distribution

The New York Probate Lawyer Blog has discussed in numerous posts the benefits of estate planning and preparing planning documents. These papers include a Last Will and Testament. When preparing a Will the creator should express his intentions to his New York estate lawyer so that the document reflects his desires. There are many types of provisions that can be found in a Will. Clauses that deal with the disposition of assets are among the most important. The Will language should also unambiguously identify the persons who are to receive estate assets.

The names of beneficiaries should be correct both in spelling and an identification of relationship to the testator such as “my wife” or “my cousin”. Any mistakes regarding even this simple statement can lead to estate litigation regarding the testator’s intended meaning and possibly even a contested Will. Continue reading

November 12, 2014

New York Estate Accounting Proceedings Can Involve the Discovery of Estate Information

by Jules M. Haas

The settlement of an estate in New York involves the preparation of an account by the fiduciary. Executors and Administrators need to assemble an account that provides information regarding the transactions that occurred during the administration of the estate.

New York estate lawyers are familiar with the provisions of the Surrogate’s Court Procedure Act (“SCPA”) that relate to accountings. These provisions are contained in Article 22 of the statute. The provisions of the law and the Surrogate’s Court Judges are generally liberal with regard to the right of an estate beneficiary to receive documents and information relating to a fiduciary’s handling of estate affairs. SCPA Section 2211 provides, in part, that the fiduciary can be examined under oath either before or after objections are filed. This section also allows document discovery to occur during such examination period. As a result, an estate beneficiary can obtain copies of bank statements, brokerage statements, expense receipts and bills, estate tax returns and other papers that can provide information as to whether there are any issues concerning the accuracy or validity of the account. In the event the beneficiary feels that the account is improper he can file Objections with the Court. Continue reading

November 5, 2014

New York Estate Accountings Can Be Settled Without Court Proceedings

by Jules M. Haas

The settlement of a New York estate can be divided into three main parts. The estate can begin with proceedings to probate a Will and appoint an Executor. If there is no Will and the decedent died intestate, then a petition can be filed to appoint an Administrator. Once the estate fiduciary is appointed the next stage involves the task of identifying and collecting assets, determining and resolving debts and claims and paying estate expenses such as taxes which include both income and estate taxes. Of course, both of the above stages can be complicated by various forms of issues and estate litigation involving a Will contest, a kinship hearing or other disputes. These controversies may delay the appointment of a fiduciary and the resolution of estate affairs.

Once the estate activities have been concluded, the time has come for the fiduciary to prepare his accounting and make a distribution to the beneficiaries. In most instances the beneficiaries will receive a copy of the account along with a form entitled “Receipt, Release and Waiver and Refunding Agreement” or some variation thereof. Essentially, the form will provide that the beneficiary approves of the account and releases the fiduciary from further liability regarding the estate. If all of the interested parties sign a release form, the estate executor or administrator will not have to file a formal accounting proceeding in the Surrogate’s Court to obtain the approval of his account. This informal method of accounting results in less time and cost for the finalization of the decedent’s affairs. If any of the beneficiaries have any questions regarding the account they can ask the fiduciary directly to respond to their inquiry. Also, if a beneficiary wants to review any of the estate papers such as bank account statements or an estate tax return, such paper can be requested from the executor or administrator. Continue reading

October 29, 2014

New York Will Contests Allow Discovery Under SCPA 1404

by Jules M. Haas

New York estate litigation may involve many different types of issues. An estate fiduciary such as an executor or administrator may discover and obtain possession of the decedent’s property by commencing proceedings under Surrogate’s Court Procedure Act (SCPA) Section 2103.

However, as New York Probate Lawyers know, one of the most common areas of Surrogate’s Court disputes involves contesting a Will. The basic requirements for a Will execution are found in Estates, Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of Wills; formal requirements”. As discussed in earlier posts in this Blog, such requirements include that the testator sign in the presence of the attesting witnesses or that he acknowledges his signature. Continue reading

October 22, 2014

New York Will Contests Result from Lack of Estate Planning

by Jules M. Haas

The New York Probate Lawyer Blog has talked about the need for individuals to engage in proper estate planning. Planning documents include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. Persons who only have modest estates still should implement papers so that their intended beneficiaries do not face the uncertainties that arise when planning documents are not professionally prepared or are not prepared at all.

It is sometimes astonishing that individuals who have amassed a tremendous amount of wealth during their lifetime by successfully operating a business can be so neglectful when it comes to estate planning. The result of such inattention often is in the form of a Will Contest. Continue reading

October 15, 2014

New York Administration Proceedings Can Be Complicate by Family Disputes

by Jules M. Haas

The New York Probate Blog contains numerous articles discussing the differences between Surrogate’s Court probate proceedings and administration proceedings. When a decedent leaves a Last Will, the process is to probate the Will and then to distribute the estate assets according to the Will provisions. The appointed Executor will receive Letters Testamentary from the Court. If a person dies intestate (without a Will), the next of kin or distributees need to file a petition to obtain Letters of Administration. New York Estate Litigation Lawyers are aware that there can be many complications and controversies in Administration cases.

A recent decision by Suffolk County Surrogate John Czygier decided on September 16, 2014 and entitled Estate of Lambert, provides an example of many of the potential problems. In Lambert the decedent died as the result of a vehicular accident. He was survived by eight children all of whom were non-marital. Continue reading

October 8, 2014

A New York Estate Plan Can Utilize a Codicil to a Last Will

by Jules M. Haas

New York Estate Lawyers are familiar with the need for individuals to establish an estate plan. A good plan for an estate should include a Last Will, Living Will, Health Care Proxy and Power of Attorney. In some cases, it is also a good idea to create a Living Trust.

The documents that comprise the plan should be reviewed periodically. A creator of the papers may want to change the beneficiaries or the nominated executors or trustees. Also, persons who are beneficiaries or fiduciaries may become ill or die and thus their selection in the papers is not appropriate for the plan. Continue reading

October 1, 2014

New York Estate Litigation Often Concerns Real Property

by Jules M. Haas

The settlement of a New York estate involves dealing with many different estate assets. These assets may include bank accounts, stocks and bonds and retirement funds. In many instances the most valuable item comprising a decedent’s estate is real property. Such property may be in the nature of the decedent’s residence or investment or commercial real estate.

It is not uncommon that when a person dies their home had been owned by them for many years or even decades. Very often the decedent lived in their home with other family members such as a spouse or children or other relatives like nieces and nephews. Problems tend to arise where the decedent was not survived by a spouse and other family members had been living with the decedent in the home. Typically, the real property residence is either given in a Last Will to persons other than, or in addition to, those who had been living there with the testator. When there is no Last Will and a person dies intestate, the interest in the real estate may pass to a group of individuals who are the decedent’s next of kin or distributees. Such persons may or may not include the residents of the property. Continue reading

September 24, 2014

A New York Guardianship Court Can Revoke a Power of Attorney and Advanced Directives

by Jules M. Haas

Guardianship proceedings in New York are governed by the provisions of Article 81 of the Mental Hygiene Law (“MHL”). Earlier posts in the New York Probate Lawyer Blog have discussed many of the aspects of guardianship for incapacitated persons (“IP”). For example, the statute provides for the appointment of a guardian for personal needs and a guardian for property management. Typically, when the Court appoints a guardian, the same individual will act in both capacities. However, there are instances when the Court will name different persons to serve in these capacities. This may occur when it is determined that a family member is best suited to make personal decisions for the incapacitated person but that someone else is more qualified to handle the IP’s financial affairs.

As discussed in earlier posts, the Court will conduct a hearing to determine whether any appointment is necessary. In many instances, the alleged incapacitated person (“AIP”) will have prepared and signed advanced directives prior to the commencement of the proceedings. Such advanced directives would include a Power of Attorney and Health Care Proxy. Generally the existence of these directives may constitute available resources that might be sufficient so as to preclude the necessity for a guardianship.

September 17, 2014

New York Surrogate’s Courts Require Proper Venue for Estate Proceedings

by Jules M. Haas

The Surrogate’s Courts in New York are located in the various counties. There is a Manhattan (New York County) Surrogate’s Court, Queens County Surrogate’s Court, Kings County Surrogate’s Court and so on. The County courts generally accept filings for estate matters that concern decedents that are domiciled in such county when they die. Surrogate’s Court Procedure Act (“SCPA”) Section 205 provides, in part, in paragraph 1 that “the proper venue for proceedings relating to such estates is the county of the decedent’s domicile at the time of his death“. Domicile is generally the location where a person has his primary home. See SCPA Section 103(15).

In view of the above provisions, upon the death of a person who has lived for example in Queens County, the proper court to file estate proceedings would be the Queens County Surrogate’s Court. Such proceedings may be a probate proceeding if the decedent left a Last Will or an Administration proceeding if the person died without a Will (“intestate”). Generally, if the case is filed in the wrong county the Court will reject it. Continue reading