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A Power of Attorney in New York is provided by the statutory provisions in Title 15 of the General Obligations Law (GOL Sec. 5-1501 et. seq).   A Power of Attorney (“POA”) can be a very useful estate planning document during life by providing a means by which a person can delegate property management authority to an agent to be used in the event of disability or incapacity.   Section 15-1501A of the GOL provides that a POA is considered to be durable and that it is not revoked or terminated if the principal becomes incapacitated.

There are numerous cases where an agent has abused his authority under a POA.   Article 81 Guardianship proceedings often involve issues regarding the validity and proper use of a POA.  Similarly, these types of issues can arise during the course of estate settlement. After an executor or administrator is appointed for a decedent’s estate the fiduciary may discover that someone improperly utilized a POA during the decedent’s lifetime.   When this occurs estate litigation is commenced by the fiduciary to recover the decedent’s assets that were wrongfully taken or transferred by the use of the POA. Continue reading

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The preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust involves a full understanding of a person’s property and financial interests.   A New York Estate Planning Lawyer generally obtains all such information from a client when formulating a plan. This process is very important whether a person’s affairs are simple or complex.

The New York Probate Lawyer Blog has had numerous posts discussing the need for a person to understand the nature of the assets owned in order for an estate plan to be properly prepared.   For example, a Last Will typically controls the disposition of assets that are owned by a person in his name alone. However, assets that are owned jointly with another person such as a joint bank account or assets where there is a designated beneficiary such as a life insurance policy, are transferred upon death to the named joint owner or beneficiary and are not controlled by a Last Will. Therefore, it is imperative to know which assets a Last Will can control for a plan to be properly formulated. Continue reading

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Controversies are not uncommon during the course of administering an estate. New York estate lawyers are familiar with the Surrogate’s Court procedures involved with such matters. Executors and Administrators have the fiduciary obligation to protect the interests of the estate in connection with all disputes regarding the decedent. A few recent cases highlight the different types of lawsuits that an estate may be involved with.

Matter of Elena Duke Benedict  involved the determination of the validity of a claim against an estate.  In this matter, trustees of certain trusts created by the decedent asserted that the decedent’s estate owed the trusts monies that were borrowed from the trusts by the decedent during her lifetime. The claim was based upon promissory notes that were signed by the decedent. Although the executor opposed the claim, in a decision dated May 8, 2014 Westchester Surrogate Anthony Scarpino found that the claim was valid and enforceable against the estate. Continue reading

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The New York Probate Lawyer Blog has provided many posts regarding the interaction between Article 81 Guardianship proceedings and the settlement of a decedent’s estate. In many cases the disputes and Guardianship litigation that occur while a person is alive are a preview and introduction to the Will contests and estate litigation that occur after death. For example, a recent post in the St. Louis Post-Dispatch by Jennifer S. Mann dated May 12, 2014 entitled “Family of Former ‘Wizard of Oz’ Munchkin Battles his Former Caretaker in Court over Estate” describes the family’s attempt to recover the life savings of a wizard of oz actor from the actor’s caretaker. The actor had been suffering from Alzheimer’s disease and the family claimed that the caretaker took economic advantage and depleted his estate. In this situation, the family may have needed to have a Guardian appointed while the actor was still alive to protect him from financial abuse.

Another recent post discusses the situation involving Casey Kasem who was famous for playing the “American Top 40” recordings. Jerry Lynn in a post at CNBC.com on May 19, 2014 entitled “What we can learn from Casey Kasem’s disappearance”, talks about the need for advance planning in such situations, particularly where there is a second marriage. The author talks about the need for advance directives such as a power of attorney and health care proxy, as well as the tension created between a new or second spouse and the children from a prior marriage. Continue reading

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The Surrogate’s Courts in New York are located in the various counties. Thus, there is a Manhattan Surrogate’s Court, a Queens Surrogate’s Court and so on. Typically, the county where a decedent had his domicile (i.e., primary home) will be the location where the estate proceedings are to be filed. For example, if a person had their primary home in Brooklyn, the proceedings concerning estate administration or the probate of a Will is to be in Kings County Surrogate’s Court.

Estate attorneys are familiar with the procedures and issues regarding estate settlement. The Court is accessible to resolve many of the issues relating to a decedent. Controversies arise in estate litigation concerning the decedent’s interests in business such as small corporations, partnerships and limited liability companies. The Surrogate generally is the judge who can resolve these disputes since their outcome relates to and affects the decedent’s estate. Additionally, a person may die and be subject to various claims of creditors. The Court can resolve controversies regarding these claims in the estate accounting proceeding or in separate proceedings.   Article 18 of the Surrogate’s Court Procedure Act (“SCPA”) is entitled “Claims; Payment of Debts and Funeral Expenses.” The sections in Article 18 deal with the presentation and determination of the validity of claims against a decedent. Continue reading

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A Power of Attorney is a document that can be both useful and misused. New York General Obligations Law (“GOL”) section 5-1501 and the sections of the law that follow set forth the basic provisions regarding the Power. Paragraph 2(j) of Section 5-1501 defines the Power of Attorney as “a written document . . . .by which a principal with capacity designates an agent to act on his or her behalf.”

A New York Estate Lawyer is familiar with the use of the Power in estate and advanced planning. When the principal appoints an agent, the appointed party is given the various powers or authority that are specified in the Power. In the event the principal becomes incapacitated or unable to handle his property management functions the Power enables his agent to act on his behalf. The existence of a valid Power may obriate the need for an Article 81 Guardianship proceeding.

Continue reading

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A fiduciary can be found in any number of different roles.  The Surrogate’s Court can appoint a New York Executor or Administrator to handle the affairs of a decedent’s estate.  The New York Supreme Court can appoint an Article 81 Guardian to be responsible for the property management and personal needs of an incapacitated person.  In all of these situations the appointed party is a fiduciary who has obligations and responsibilities.  The actions and performance of all fiduciaries are subject to review by the Court which typically occurs when the fiduciary prepares an accounting reflecting the transactions that have occurred during the tenure of the accounting party.  All persons interested in the matter have a right to review the accounting and to file objections concerning issues they believe constitute a breach of a fiduciary duty. There have been a number of recent court cases which provide interesting examples of the process of reviewing the propriety of fiduciary conduct.

Matter of Flynn was a case involving an accounting by an Article 81 Guardian.  Flynn was decided by Brooklyn Supreme Court Justice Michael L. Pesce on March 20, 2014.  A son of the incapacitated person filed Objections to the Guardian’s account essentially asserting that the use by the Guardian of in trust for accounts (“Totten Trusts”), which named the son as beneficiary, was improper.  After reviewing the evidence, the Court found that the Guardian’s use of these accounts, even without prior Court approval, was appropriate since the funds were needed and used for the interests of the incapacitated person.  The Court also found that the Guardian’s selection of a nursing home to which the funds were paid was also appropriate and did not waste the funds.  The Court dismissed the Objections as being without merit. Continue reading

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Following the death of a decedent, proceedings in the Surrogate’s Court are often begun for the appointment of an Executor or Administrator.  As discussed in many past posts in the New York Probate Lawyer Blog, an Executor is appointed when a Will is admitted to probate and letters testamentary are issued.  If a person dies without a Will, he is said to have died intestate and the Court then issues letters of administration to the administrator.  The administrator is determined according to statutory priority of kinship pursuant to Surrogate’s Court Procedure Act (SCPA) 1001 entitled “Order of priority for granting letters of administration”.

New York estate lawyers are aware that an estate fiduciary has many responsibilities including locating and collecting estate assets.  Sometimes it may occur that an asset belonging to the estate is being withheld or has been wrongfully taken by a third party.  There are provisions in the SCPA that can be utilized by a fiduciary to discover and recover these assets from the third party. Continue reading

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Estate Planning attorneys are aware that it is important for a person to prepare a Last Will, Living Will, Health Care Proxy and other appropriate papers regarding advance directives and financial planning.  The New York Probate Lawyer Blog has had many posts regarding these matters.  Among the essentials to develop a good plan, a person should spend time reviewing with his advisors the assets that are owned, the identity of the relatives or other persons that are to receive a beneficial interest, and the amounts and manner in which each beneficiary is to receive his interest.  Numerous considerations also include the impact of taxes and the utilization of trusts and other planning methods.

No matter what kind of estate plan is developed, it is essential that the creator’s intent be clearly and explicitly set out in the various documents that are signed.  Estate litigation in the New York Surrogate’s Court invariably results when the wording in a paper, such as a Last Will, is not clear or complete.  An example of the consequences of missing or unclear language in a Will appeared in a decision on March 19, 2014 by Manhattan Surrogate Rita Mella in Will of Isasi-Diaz.  Continue reading

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Planning your estate requires the consideration of many factors.  A primary consideration is preparing and executing a Last Will.  New York Estate Lawyers are familiar with the basic requirements for creating a valid Will.  As set forth in Estates, Powers and Trusts Law Section 3-2.1 a Will should be in writing; signed at the end by the testator and there should be at least two attesting witnesses.

The dispositions that appear in a Will typically are in the form of bequests of specific property or certain sums or percentages of assets as well as a catch all or residuary clause for the balance of an estate.

There are many aspects involved in preparing a Will which include mapping out the appropriate dispositions and including clauses that might create testamentary trusts, the appointment of executors and trustees and tax provisions to lessen the burden of estate taxes.  All of these items should be carefully reviewed by the testator with a professional estate planning advisor so that a person’s intentions for the transfer of his estate are properly formulated and effectuated. Continue reading

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