New York Probate Lawyer Blog

September 18, 2013

New York Guardianship Can Be Avoided by Using Advance Directives

A New York Guardianship proceeding under Article 81 of the Mental Hygiene Law (“MHL”) can be a very complex and sometimes lengthy process. The New York Probate Lawyer Blog has discussed in many posts the Guardianship process. The essence of the proceeding is a determination as to whether the alleged incapacitated person (“AIP”) is “incapacitated”. As provided in MHL 81.02 a finding of incapacity requires clear and convincing evidence that the AIP will be harmed because he cannot provide for his personal or property management needs and cannot adequately appreciate and understand the nature and consequence of his disability.

The Guardianship Court will be presented with a Petition and a Court Evaluator usually will provide the Court with a report and recommendations. A hearing will be held at which time testimony from parties and witnesses will be given and other evidence introduced. A decision and judgment issued by the Court finally determines whether a Guardian is appointed, and if so, the Court selects the Guardian and delineates the Guardianship Powers.

It is preferable, however, and if possible, for a person to prepare and finalize documents identified as advance directives that might obviate the need for a Guardianship. A Health Care Proxy is a perfect example as to advance planning whereby a person is named as an agent to make health care decisions if the principal or creator of the proxy is unable to do so. Similarly, a Power of Attorney allows a person to select other individuals to make property management decisions regarding many specified items such as real estate or business transactions or tax matters. These two documents, a Health Care Proxy and Power of Attorney, might avoid a long and costly Guardianship court case.

Another document that a New York Estate Planning Lawyer can assist with is a Living Trust. These trusts allow the creator to place all assets under the trust while maintaining full control as the Trustee over their disposition. However, provisions in the Trust can provide for a substitute Trustee if the creator becomes disabled or incapacitated. A Living Trust can also act as a substitute for a Last Will and typically provides very similar provisions for the disposition of the trust promptly upon the death of the creator.

While advance directives can be very helpful and may avoid the Guardianship process, all such documents may still be the subject of controversy and court proceedings. Just recently, Dutchess County Supreme Court Justice James D. Pagones decided a case entitled Matter of IMRE B.R. In IMRE a person had executed a power of attorney and Merrill Lynch refused to accept or honor the power. Merrill Lynch claimed that the principal might have lacked capacity to sign the power. A petition was then brought under the New York General Obligations Law Sec. 5-1510(2)(i) to compel Merrill to accept the power of attorney. After reviewing the allegations, the Court granted the petition to compel.

Estate and lifetime planning requires a consideration of a persons assets, desires and intentions and the effect these decisions may have on intended beneficiaries. The implementation of advance directives can provide an efficient and expeditious way to deal with circumstances such as incapacity and even a short-term disability. By expending the time and effort to provide these papers, the more cumbersome and lengthy Guardianship process may be avoided.

September 11, 2013

A New York Estate Can Involve Issues from A Divorce

by Jules M. Haas

There are many aspects in life that can have an impact on a person’s estate. An individual’s marriage is certainly one of the most important and dramatic factors regarding estate rights.

If a decedent was married, a surviving spouse is given many estate rights and privileges. As discussed in numerous posts in the New York Probate Lawyer Blog, a spouse is considered a primary distributee or next of kin. As such, a spouse has a right to act as the Administrator of the estate where the decedent dies intestate (without a Will). A spouse also has the right to receive a minimum amount of a decedent’s estate and cannot be totally disinherited. A spousal right of election is provided by New York Estates, Powers and Trusts Law (EPTL) Section 5-1.1A. Generally speaking, the right of election is the greater of $50,000.00 or one-third of a decedent’s net estate. EPTL Section 5-3.1 also gives a spouse a right to certain basic personal assets of the decedent such as household furniture and a motor vehicle having a value of up to $25,000.00. EPTL 4-1.1 sets forth a spouse’s share of an intestate estate.

The Federal and New York State Estate Tax Laws also have provisions that are favorable to a spouse. The tax laws allow an unlimited marital deduction by which spouses can transfer an unlimited amount of assets between themselves without incurring gift or estate taxes.

Due to the rights and monetary benefits afforded to a spouse in a decedent’s estate it is not unusual to find Estate Litigation regarding a spouse’s interest in an estate. Estate disputes can involve issues as to whether a valid marriage between the decedent and the spouse ever occurred or whether the parties were divorced. EPTL 5-1.2 provides, among other things, that a valid divorce will disqualify a person from invoking spousal rights. Another area of controversy involves pre-nuptial or anti-nuptial agreements whereby a spouse may have agreed to waive or limit spousal rights of inheritance. These agreements can be the source of Estate Contests as to the interpretation of the language in the agreement or whether the agreement is void due to coercion or other factors.

In New York State, like many other states, the divorce laws are based upon concepts such as equitable distribution whereby married couples assets are divided in a so-called equitable manner based upon many factors such as contributions during the marriage, the determination of separate property and long-term valuations of marital assets such as professional licenses and business interests. Equitable distribution may, in fact, provide a spouse with greater monetary benefits than the one-third or one-half interests that are applied by the estate laws after a spouse dies. In a number of instances courts have been confronted with cases where a spouse dies during the divorce process and have been asked to decide whether the estate laws or divorce equitable distribution laws apply to divide the deceased spouse’s assets. Generally, a death will abate or stop the divorce case and, therefore, the estate laws take over. However, the courts have recognized that where a divorce case has essentially been decided, even though the final judgment is not issued, the Courts will allow the equitable distribution laws to apply. In the recent case of AC v DR decided by New York Justice Stacy D. Bennett on August 29, 2013 and reported in the New York Law Journal on September 10, 2013, these very issues were presented for review. In AC the Court had granted a divorce to a husband and had concluded hearing the testimony as to equitable distribution but had not made a final decision as to the financial distribution. When the husband committed suicide the husband’s estate sought to dismiss the divorce case as having been abated by the death. Not only did the court find that the divorce action did not abate since the action was essentially completed, it also found that the husband would not be allowed in equity to defeat the wife’s equitable distribution claims by deliberately causing his own death.

Estate Settlement and Estate Administration often involve the resolution of many issues including the status of a decedent’s next of kin which includes a surviving spouse. I have represented many clients in estate mattes where kinship and spousal issues are important in determining the manner in which estate assets are to be distributed.

September 4, 2013

Estates Taxes Are Always An Important Aspect of New York Estate Administration

by Jules M. Haas

A New York Estate is subject to potential estate taxes. The tax is imposed under both Federal and New York State laws. The New York Probate Lawyer Blog has previously talked about estate taxes. It is the duty of an estate fiduciary such as an Administrator or Executor to determine whether a decedent’s estate must pay any estate tax and to actually pay the tax.

Both the Federal and New York estate tax is due to be filed and paid 9 months following a decedent’s date of death. An automatic extension of 6 months is available to file the tax return. The information required to be reported is a detailed list of all of the assets, debts, expenses and other financial data that provide an economic snap-shot of an estate.

Estate assets are typically valued as of the decedent’s date of death. This gross estate includes all items owned or controlled by the decedent or in which the decedent had an interest as of his death. Such assets include bank accounts, real estate, stocks, bonds and other items having value such as copyrights, trademarks and membership interests in businesses like a partnership or limited liability company.

During the course of estate settlement, it may be easy to obtain date of death values for assets such as bank accounts, real estate, stocks and bonds. Other items such as business interests may be difficult to value and subject to dispute. Upon the review or audit of an estate tax return, the Federal or State tax authorities may contest the value of an asset or deductible expense or liability.

An example of such estate tax dispute is presently occurring with the estate of the late pop star Michael Jackson. As reported by Patrick Temple-West in Reuters.com on August 23, 2013, the IRS claims that the Jackson estate owes Federal tax and penalties of $702 million. In the article “US Agency says Michael Jackson estate owes $702 million in taxes“, it is reported that the estate claimed in its tax filing, among other things, the image and likeness of Jackson had a value of only $2,105 while the IRS placed its value at $434 million.

Similar tax disputes can arise concerning the value of estate tax deductions such as liabilities, debts or expenses incurred in estate administration. As can be seen, potential estate taxes should be a major consideration in estate planning. This is particularly so when a large estate tax liability is expected and there are limited liquid assets available to pay the tax bill. Since the taxes need to be paid within 9 months after a death, there may be very little time to sell such items such as real estate or a cooperative apartment in order to obtain the funds to pay the tax. In many instances the use of life insurance or other pre-death financial planning can help solve this post-death liquidity dilemma.

At the present time, the Federal estate tax exemption is $5,250,000 and the New York exemption is $1,000,000. Also, both jurisdictions allow an unlimited marital deduction. However, the challenge presented in an estate plan is to limit the tax liability when a potentially taxable estate is to be ultimately paid to a non-spouse. In such situations the taxable amounts cannot be protected by the marital deduction.

It is essential that a New York Estate Planning attorney be provided with information regarding a person’s asset values and possible estate tax deductions. In this manner the appropriate tax plan and beneficiary designations can be formulated in documents such as a Last Will or Living Trust.

August 28, 2013

A New York Guardianship Court Evaluator is Entitled to Be Paid a Fee

by Jules M. Haas

Article 81 of the New York Mental Hygiene Law (“MHL”) contains the provisions regarding the appointment of a Guardian for a person who is incapacitated. The New York Probate Lawyer Blog has previously discussed that the statute provides powers for a Guardian for property management (MHL 81.21) and for personal needs (MHL 81.22).

In most Guardianship proceedings the Court will appoint a Court Evaluator (MHL 81.09). A Court Evaluator is named in the Order to Show Cause that is signed by the Court when the Guardianship case is commenced. The Court Evaluator’s job is essentially to perform an investigation of the case and prepare a written report and recommendation for the Court. This investigation and report concerns such issues as the incapacity of the person alleged to be in need of a Guardian, the nature of such person’s property and assets and who is the most appropriate person to be appointed as Guardian.

In many instances the time expenditures for a Court Evaluator to perform a full investigation, prepare a report, and attend all Court hearings can be quite extensive. This is especially so when the Guardianship proceeding is contested. A Contested Guardianship Proceeding can involve issues regarding whether the alleged incapacitated person actually needs a Guardian or there may be intra-family fighting as to which family member is most appropriate to be appointed as Guardian.

Regardless of the complexity of the case, the Court Evaluator is usually entitled to be paid a fee for the services incurred in performing the job. MHL 81.09(f) states that when the Court appoints a Guardian and grants the petition, the Court can award a reasonable fee to be paid from the incapacitated person’s assets. However, when the Guardianship application is denied, the Court may direct that a Court Evaluator’s fee be paid from the alleged incapacitated person’s assets and/or directly by the person who commenced the proceeding.

Sometimes, the alleged incapacitated person dies during the Guardianship case. In this circumstance, the statute provides that the Court may award a fee to be paid by the person’s estate and/or the petitioner. A recent case decided by Justice Alexander W. Hunter, Jr. (Supreme Court, Bronx County) entitled Matter of Soto, decided on August 2, 2013 and reported in the New York Law Journal on August 29, 2013, concerned this latter situation. In Soto, the Court had issued an Order and Judgment appointing a Guardian and had awarded a fee to the Court Evaluator. However, before the Guardianship actually commenced the incapacitated person died. Therefore, the Guardian could not pay the Court Evaluator’s fee. Thereafter, when the Court Evaluator made an application to the Court to have the petitioner personally pay the fee, the Court denied the application and directed the Court Evaluator to file a claim in the Surrogate’s Court against the incapacitated person’s estate for payment of the fees.

Guardianship cases can be very complicated and require the assistance of an experienced New York Guardianship Attorney. I have represented clients who have filed petitions to be appointed as Guardians for family members and friends. All aspects of these matters need to be considered including the necessary proof of incapacity and the manner in which expenses such as Court Evaluator’s fees are to be paid.

August 21, 2013

A New York Will Contest Can Involve May Different Steps

by Jules M. Haas

The Contest of a Will in New York, as in most other jurisdictions, brings to mind a tense scene inside a courtroom where a trial is ongoing between a decedent’s family and some interloper such as a nursing aide or other non-relative who has forced an old and unknowing decedent to disinherit his family. While many Will contests end in a trial, most such estate litigations are settled or disposed of before a trial in the Surrogate’s Court.

Additionally, a trial is the last of many different types of procedures and proceedings that comprise a case involving a dispute regarding the validity of a Will. The proceedings typically begin with the Probate Proceeding where a Probate Petition is filed with the Surrogate’s Court seeking a Will’s validation. At that point various statutes and rules contained in the New York Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law require that the decedent’s distributees (ie next of kin) be notified and afforded the opportunity to challenge the Will. However, instead of heading right into a trial, the opposing parties typically engage in a pre-trial process. This process often begins with the discovery of information that is allowed by SCPA 1404.

The New York Probate Lawyer Blog has discussed SCPA 1404 in previous posts. Essentially, this statute allows a person who has filed or is just considering filing Objections to a Will, to take the pre-trial testimony of the attesting witnesses to a Will and the person who prepared the Will such as the attorney draftsperson. The nominated executors and the proponents of the Will may also be examined if there is an in terrorem clause. SCPA 1404 also allows the parties to obtain discovery documents that may be relevant to this examination.

One interesting aspect of this discovery process is a rule that is contained in Section 207.27 of the New York Surrogate’s Court Uniform Rules. This section limits the examination to a time period that is three years prior to date of the Will and two years after such date or the date of the death of the decedent, whichever is shorter. The Court can extend these periods of times if it is shown that special circumstances require the extension.

In a recent case decided by Nassau Surrogate Edward McCarty III on June 28, 2013 and reported in the New York Law Journal on August 23, 2013, entitled Will of Janet Soluri, the Court denied a request for documents dated outside of the above 3 year/2 year parameter since special circumstances were not shown to exist.

The discovery process and Court proceedings involved in a Contested Probate matter can be very complex and require the advice of estate attorneys who are familiar with the Surrogate’s Court and Estate Litigation. Examining witnesses to a Will, preparing and filing Will Objections and analyzing the facts and issues in these proceedings in order to protect the rights of disinherited heirs is typically challenging.

August 14, 2013

A New York Spousal Right of Election Must Be Exercised in Accordance with the Statute

by Jules M. Haas

New York Estate Attorneys are aware of the many statutes and rules regarding Wills, Estate Settlement and Surrogate’s Court procedures. The Estates, Powers and Trusts Law (“EPTL”) and the Surrogate’s Court Procedure Act (“SCPA”) embody the statutory framework regarding estates practice.

Among the many items contained in these laws are provisions regarding the rights of a decedent’s surviving spouse. As would be expected, a spouse, along with children, play prominent roles when it comes to inheritance. For example, if a person dies intestate (i.e, without a Last Will) EPTL 4-1.1 requires that a spouse receive $50,000 plus one-half of the decedent’s estate when there are also surviving issue (i.e. children). If there are no issue surviving, the spouse receives the entire estate. However, what is the outcome where the decedent does leave a Last Will but makes no provision in the Will for the spouse or for children. In New York a person may disinherit his children entirely. A spouse though may not be completely cut out from inheriting. As discussed in previous posts in the New York Probate Lawyer Blog, EPTL 5-1.1-A entitled “Right of election by surviving spouse” contains provisions that effectively give a spouse at least $50,000 or one-third of a decedent’s net estate. The statute goes on to provide a procedure to follow for an aggrieved spouse to claim this statutory minimum amount. If a spouse is completely disinherited under a Will or is not designated to receive a sum at least equal to the right of election amount, the spouse can prepare and file an Election to take this elective share rather than the lesser amount designated by a Last Will.

The statute provides very explicit procedures that must be followed to preserve and effectuate this election. EPTL 5-1.1-A(d) contains the “Procedure for exercise of right of election” and sets forth requirements which include that the election must be made within 6 months after the issuance of fiduciary letters but not later than 2 years after the death of the decedent. Also, the election must be served on the estate’s personal representative and filed with the Surrogate’s Court.

A recent case decided by Brooklyn Surrogate Diana Johnson entitled Estate of Shlomo Cyngiel illustrates the necessity to obide by the requirements of the Right of Election Statute. Cyngiel was decided on July 23, 2013 and reported in the New York Law Journal on July 30, 2013. The decedent’s spouse died over 5 years after the decedent and, as found by the Court, failed to follow the statutory procedures to timely file for the Election. The deceased spouse’s Executor applied to the Surrogate to grant an extension of the time to file on behalf of the deceased spouse. The Surrogate found that the Executor did not present a justifiable basis to allow an extension of time to allow a late filing. The Court also stated that a right of election is a personal right of a surviving spouse and must be exercised during the spouse’s lifetime. The estate of the surviving spouse was precluded from exercising the election.

The use of a Right of Election is an important aspect in both pre-death Estate Planning and post-death estate administration. Therefore, it is always a good approach to review and discuss these issues with an experienced Estate Lawyer.

August 7, 2013

A New York Supplemental Needs Trust Can Preserve Estate Assets for an Incapacitated Person

by Jules M. Haas

A New York Supplemental Needs Trust (“SNT”) is a trust that allows trust funds to be available for a person who is receiving government benefits such as Medicaid or Social Security Disability (“SSD”). The governmental payments continue and are not reduced or terminated despite the existence of the trust fund. While the government sometimes may be entitled to claim a re-payment upon the death of the beneficiary, the beneficiary can utilize both the government and trust resources during life in furtherance of their quality of life.

A SNT is typically needed where a person is disabled or incapacitated and is the recipient of governmental assistance. New York Estates, Powers and Trusts Law (“EPTL”) Section 7-1.12 provides the statutory details as to the trust requirements. New York Estate and Guardianship Lawyers generally become aware that there are many different situations where a SNT can preserve assets to be used for incapacitated individuals. For example, there are situations where a person may be injured due to an accident or medical procedure and ultimately receive a large monetary award for the injuries they suffer. Sometimes the injuries also result in an incapacity that would allow the person to qualify for benefits such as Medicaid or SSD if they did not have any personal assets. In order to prevent the monetary settlement from disqualifying the person from receiving the benefits, the settlement proceeds can be placed into a SNT. The SNT trustee can then use the SNT funds in his discretion to provide additional care and benefits which are not provided through the government payments.

Many situations where a SNT is needed may involve Court proceedings such as Article 81 Guardianships in the Supreme Court or Estate Administration in the Surrogate’s Court. In these matters, the Court is asked to authorize and allow the creation of the SNT and the transfer of the funds to the SNT trustee. Court authorization allows the funds to pass directly to the trust and avoid having the incapacitated person receive these monies which would otherwise result in the disqualification or termination of the governmental benefits.

A recent case in the Nassau Surrogate’s Court is a typical example of the use and benefit of a SNT. Matter of Krushnauckas, decided by Surrogate Edward McCarty III on June 28, 2013, and reported in the New York Law Journal on August 8, 2013, concerned the estate of an individual, Adrienne, who died intestate leaving a daughter named, Michele. Michele was 56 years of age and was mentally retarded and was receiving governmental benefits in the form of Medicaid and Supplemental Security Income. Michele’s Property Management Guardian was the Public Administrator who requested that the Court approve a SNT for the approximately $400,000 estate distribution that Michele was entitled to receive. By placing the inheritance into the SNT, Michele’s Medicaid and SSI would not be affected. After reviewing the general benefits and reasons for establishing a SNT along with some issues regarding payback of benefits, the Court authorized the establishment of the trust.

The effective planning and use of a SNT in Article 81 Guardianship proceedings and Estate Settlement matters can create tremendous benefits and promote the quality of life for persons suffering from disabilities and incapacity.

July 31, 2013

New York Executors, Administrators and Trustees are Entitled to be Paid Commissions

by Jules M. Haas

New York Estate Lawyers regularly prepare Last Wills and Trusts for their clients. One item that is typically discussed is the amount of commissions or fees that an Executor, Administrator or Trustee may be paid. The primary source for the allowance and calculation of fiduciary commissions is Article 23 of the New York Surrogate’s Court Procedure Act (“SCPA”).

Section 2307 of the SCPA entitled “Commissions of fiduciaries other than trustees” relates primarily to Executors and Administrators. While the section and the implementation of its rules is rather complex, the simple formulas established are that commissions are paid at the rate of 5% of the first $100,000; 4% for the next $200,000; 3% for the next $700,000; 2½% for the next $4,000,000; and 2% for all sums above $5,000,000. Other parts of the statute provide that the fiduciary is allowed to be reimbursed for the reasonable and necessary expenses that he pays. Also, if the fiduciary collects rents and manages real property, he is entitled to receive an additional 5% of the gross rents he collects. If the value of the estate is more than $300,000 and there are multiple co-fiduciaries, each fiduciary (up to 3 in number) can receive a full commission.

Clearly, the amount of commissions that a single or multiple fiduciaries can receive can have an impact on the funds that are ultimately paid to the beneficiaries. Therefore, when creating an estate plan, it is important to consider the effect the payment of commissions may have. Not only is there the financial consideration whereby the net estate available for the beneficiaries is reduced, commissions may result in unknowingly benefiting one beneficiary over another. For example, if a decedent wants to name only one of his children as an Executor, the child who acts as Executor may end up with a larger share of the estate due to the up-front payment to him of commissions. This result may be unintended if the Executor child was only named for convenience because he or she lived in New York while the other children resided elsewhere.

SCPA 2309 entitled “Commissions of Trustees under wills of persons dying, or lifetime trusts established, after August 31, 1956” provides the basic guidelines for the payment of Trustees commissions. When selecting any fiduciary such as an Executor or Trustee, there are many considerations to be taken into account. In addition to the estimated amount and possible financial impact of commissions, the creator of a Will or Trust must have the utmost confidence that the fiduciary will perform his duties properly and carryout the intentions of the creator. As can be seen from many previous posts in the New York Probate Lawyer Blog, fiduciaries have many responsibilities and can face many complex and intricate problems such as Estate Tax issues and Estate claims. While fiduciary commissions may be well earned compensation, it is still important to consider and plan an estate and trust bearing in mind the commissions that may be paid.

An additional factor that may be important to consider when reviewing potential commissions is that the payment of fiduciary commissions is typically a deductible expense for Estate Taxes. Also, fiduciary commissions are usually taxable as income to the fiduciary whereas beneficiary distributions from an estate are commonly received income tax free. Therefore, a fiduciary may be better off from an income tax standpoint to receive his beneficial share in full rather than receive an upfront payment of a taxable commission which would reduce his non-taxable beneficiary payment.

July 24, 2013

New York Estate Planning Documents Prevent Confusion Concerning Transfer of Assets

by Jules M. Haas

The New York Probate Lawyer Blog has posted many articles concerning the need for thoughtful and specific estate planning. The many documents that can be used for advanced directives and post-death plans include a Living Trust, Health Care Proxy, Last Will, Living Will and Power of Attorney.

The failure of a person to provide any documented directions or intentions can result in the disposition of assets to unintended beneficiaries through intestacy and disputes regarding a person’s care and property management in the case of incapacity. Even when estate planning documents are put into place, Will provisions that are ambiguous or confusing can result in estate litigation in the form of a Will construction proceeding.

In addition, there are many instances where, despite the preparation and execution of planning documents, disgruntled heirs, relatives and other individuals may claim that the decedent had promised or agreed to provide for them notwithstanding the absence of such provisions in a Will or a Trust. An interesting example of such a situation was presented to the Nassau Surrogate’s Court in Will of Irving Lublin , decided on June 26, 2013 and reported in the New York Law Journal on July 22, 2013. In Lublin Nassau Surrogate Edward McCarty III was presented with a Last Will that left the decedent’s entire estate to the decedent’s wife and son. The decedent’s daughter commenced a lawsuit claiming that her grandfather had an oral agreement with the decedent by which the grandfather agreed to transfer the family business to the decedent and the decedent’s wife. In return the decedent allegedly agreed that he would care for the aggrieved daughter and ensure that she received her share of the business. The daughter now claimed that the business was wrongfully transferred to the decedent’s son.

After reviewing the evidence the Court determined that the alleged oral agreement was too vague to be enforceable. The Court also refused to impose a constructive trust due to the lack of specificity regarding the agreement.

Lublin presents an example of a common situation where individuals have an expectation based upon lifetime promises or understandings with a decedent, and end up being disappointed when those expectations are not adequately expressed in valid and enforceable documents. From an estate planning point of view, if the creator of a Trust or Will desires to benefit a person with a bequest or other property disposition, the Trust or Will should contain very specific provisions regarding the proposed transfer. Similarly, it is always best for a person not to state or infer promises that are not intended to be memorialized in an enforceable document. Such pronouncements can only create expectations for individuals who end up being hurt or dissatisfied upon learning that there have been no written provisions made for their benefit. These circumstances invariably lead to litigation in an estate and unnecessary complications for estate administration.

July 17, 2013

New York Surrogate’s Court Has Authority to Evict Occupants of Estate and Trust Property

by Jules M. Haas

The administration of a decedent’s estate is primarily under the authority of the New York Surrogate’s Court. These courts also supervise testamentary trusts and, in many cases, inter vivos trusts, as well. A testamentary trust is a trust that is created by a decedent’s Last Will.

As can be imagined, there are many diverse issues that a decedent’s estate may be involved with. For example, the decedent may have been the owner of a business. There can be issues and disputes concerning the business operations that a rise after death.

Additionally, matters concerning the determination and collection of assets and controversies regarding a decedent’s debts and obligations are all part of the multitude of issues that the Surrogate’s Court can be called upon to determine.

The jurisdiction of the Court to review issues that affect an estate is very broad and sometimes it is surprising that the Surrogate’s Court has authority to rule on a particular controversy. One such area that falls into this category is summary eviction proceedings. In most localities in New York, there are specifically designated Courts in which landlord-tenant matters and evictions are heard. In New York City, each of the counties, such as Queens and Brooklyn, have landlord-tenant parts in the New York City Civil Court.

It is very common that when a person dies owning real estate such property is occupied by third parties. The occupant may be an unrelated tenant or even a family member who was living at the property with the decedent or otherwise with the decedent’s consent. There are many cases where a decedent may have allowed a relative to live in a house for decades. However, after a person dies, if the real estate is titled in the decedent’s name alone, the property may become part of the decedent’s estate and its sale may be necessary to pay estate bills, a mortgage or to distribute the property value amongst numerous estate beneficiaries.

Problems arise when the occupant refuses to vacate the property. The fiduciary, who has the responsibility to manage the property, is then faced with the task of having to evict the occupant so that estate or trust affairs can be taken care of. In these cases the first thought might be to file a petition in the local landlord-tenant Court. However, the Surrogate’s Courts have acknowledged that the eviction proceeding can be commenced in such Court since the matter affects the administration of the estate or trust affairs.

A recent case entitled Matter of Katherine Boyer decided by Surrogate James Pagones (Surrogate’s Court, Dutchess County) on June 7, 2013 and reported in the New York Law Journal on June 14, 2013, addressed this very issue. In Boyer, a property owned by the decedent was transferred under the decedent’s Last Will to the trustees of a testamentary trust. The trustees brought a proceeding in the Surrogate’s Court seeking the eviction of the occupant who was living in the property. The Court found that the property was owned by the trust and also issued a warrant of eviction against the occupant.