New York Probate Lawyer Blog

July 10, 2013

New York Accountings May Be Compelled by the Surrogate’s Court

A New York Executor, Administrator or Trustee has many powers and obligations. As a fiduciary, such appointments require that a full record and account of activities be maintained so that an accounting can be provided to the estate or trust beneficiaries.

It is not uncommon for a beneficiary to complain that he did not receive either an accounting from a fiduciary or the full share of assets that he feels he was entitled to. The New York Probate Lawyer Blog has discussed in previous posts that the Surrogate’s Court Procedure Act (“SCPA”) provides a remedy when a beneficiary asserts that an accounting has not been provided. SCPA 2205 sets forth that the Court may issue an order that requires a fiduciary to file an account. Typically, the aggrieved beneficiary will prepare and file a Petition with the Court and a Citation is issued directing the fiduciary to appear in Court and state why he should not be required to file the account. Since the preparation of an accounting is fundamental to the completion of the fiduciary’s job, the Surrogate will almost always require the filing. If the fiduciary fails to appear on the Court date or does not comply with the Order to file, the Court may suspend or remove the fiduciary.

A New York Estate Attorney will usually represent an Executor, Administrator or Trustee in an accounting proceeding. Very often, the services of a fiduciary accountant are used to prepare the detailed schedules that are part of the papers to be given to the beneficiary and the Court. The schedules must be in accordance with the requirements of the estate rules. SCPA contains an Official Form 12 which is an Account of Executors and Administrators. Official Form 13 is an Account for Trustees.

While the Surrogate usually directs a court filing of a formal accounting, the Court appears to have some leeway in its determination. A recent decision by New York Surrogate Nora Anderson entitled Estate of Jean Kennedy decided on June 12, 2013 and reported in the New York Law Journal on June 21, 2013 is instructive. In Kennedy, Surrogate Anderson declined to require an Executor/Trustee to file a formal judicial accounting. The Judge ruled that such filing would not be in the best interest of the estate at the present time since the fiduciary had provided an informal accounting, was willing to provide the beneficiary with all requested financial information and it appeared that the beneficiary’s interests had already been satisfied with other assets.

I have found that a claim of breach of fiduciary duties and the failure to account to a beneficiary are very common aspect of Estate Litigation in the Surrogate’s Courts. While the New York Estate laws are very helpful and protective of the interests of beneficiaries, the Kennedy case shows that judicial decisions often reflect the needs of the particular facts and circumstances of the case.

Therefore, consultation with a New York Trusts and Estate Lawyer regarding fiduciary breaches and accounting requirements is important in order to present a matter to the Court in an appropriate fashion. As they say, one size does not fit all.

July 3, 2013

Estate Property Rights May Seem to Never Expire

by Jules M. Haas

The New York Estate Settlement process begins upon the death of an individual. Clearly, a person’s demise signals what seems to be an end to that person’s affairs and the settlement or winding up of matters and the distribution of estate assets. However, as shown in many posts in the New York Probate Lawyer Blog, a person’s death may initiate and involve events and issues that can continue for years or even decades.

Many aspects of the administration of a New York Estate can seem never-ending. For example, Estate Litigation involving Will Contests can delay the finalization of an estate for many years and involve proceedings in the Surrogate’s Courts. Many other disputes concern the ownership of a decedent’s assets. These controversies can take many different forms. A recent case decided by Kings County Surrogate Margarita Lopez-Torres on May 23, 2013 entitled Matter of Hasan related to the ownership of certain real property. In Hasan, the decedent had been a co-owner of property as a tenant-in-common. Thus, the decedent’s interest in the real estate passed to his heirs at law subject to necessary estate administration rather than to a co-owner as would have occurred if the property was held jointly with rights of survivorship. As discussed in the decision, after the decedent’s death, various deeds were executed transferring the decedent’s interest in the property without proper authority. After much litigation before the Surrogate, the Court declared these deeds null and void.

Other estate asset rights may result in the perpetuation of estate matters. These rights may involve interests in a business, copyrights, trademarks and rights of publicity. As reported by Eriq Gardner in the Hollywood Reporter, Esq., on June 4, 2013, the heirs of the late film star Lon Chaney, Jr. commenced a lawsuit against Universal Studios. The lawsuit seeks damages for the improper exploitation of Mr. Chaney’s likeness. The film star died in 1973 and was famous for his role in many horror movies of the 1930’s and 1940’s such as the Wolf Man.

In another recent lawsuit, the Andy Warhol Foundation had claimed that artwork from a Warhol album cover from 1967 was protected by copyright and trademark laws and was being improperly exploited. As reported by Eriq Gardner in the Hollywood Reporter, Esq., on May 29, 2013, the parties had recently settled this Federal lawsuit.

As can be seen from the cases discussed and many other posts in this Blog, the settlement of a person’s affairs can be many times more complicated after they die than when they were alive. New York Estate Planning may be very helpful in avoiding some of the most complicated post-death issues. It is imperative that a full exploration and understanding of a person’s assets takes place when preparing an estate plan. Appropriate steps can then be implemented to provide for proper administration of property rights after death and to cure any defects or clarify any documents such as deeds, or copyright and trademark filings, so that disputes can be avoided.

June 26, 2013

A New York Living Trust Can Provide Benefits to an Estate Plan

by Jules M. Haas

Living Trusts in New York present a number of beneficial options for a person’s Estate Planning. The basic planning and Advanced Directive documents begin with a Last Will, Health Care Proxy and Living Will and Power of Attorney. However, these papers may not meet all of the needs in a particular situation.

For example, a Last Will can provide for the disposition of a person’s assets in many different ways through provisions for bequests of stated monetary sums, or the specific devise of particular real estate, or a gift of a percentage of the estate. Also, a Last Will can create testamentary trusts to take advantage of estate tax planning methods or provide protection for minor children or beneficiaries who are incapacitated. However, in order for a Last Will to become validated and effective it must be filed with the Surrogate’s Court and admitted to probate. The Probate Process is typically not a barrier to a smooth estate settlement particularly where all of the interested parties involved are close family members and there is no antagonism between the parties. Unfortunately, there are many situations where conflict and complexity may hinder or interfere with probate.

A Living Trust may be used to avoid some of the Probate issues and other lifetime problems which are identified below. These items include the following:

(a) Identification of distributees (next of kin) – when a Will is offered for probate the New York estate laws and rules provides that the Court be given specific details regarding a person’s next of kin. Determining this information may be difficult particularly in situations where the decedent has not had contact with any family members for decades and may have been born outside of the United States. I recall one situation where a person who was preparing their estate plan had been brought up in foster care and had no knowledge as to his biological family. The administration of a Living Trust does not require the identification of next of kin. Upon the death of a decedent the Trustee of the trust is typically authorized to distribute the trust assets to the trust beneficiaries without any Court proceedings or any search for, or notice to, the decedent’s living heirs. The provisions for distributions under the Trust would be exactly the same as set forth in the Last Will.

(b) Avoidance of Will Contests – since the administration and distribution of trust assets does not require identifying or notifying next of kin or the commencement of a Surrogate’s Court Probate Proceeding, it is less likely that a disgruntled heir will challenge the validity of a decedent’s trust or estate plan. It is rather easy for an unhappy disinherited individual who received a notice of the Probate Proceeding to file Objections to Probate with the Court. While the validity of a Living Trust can be challenged, the person who wishes to do so must take an affirmative step and prepare Court papers and commence a new Court lawsuit to discredit the validity of the trust. Thus, a Living Trust may avoid the Contest of a Will.

(c) Management of Assets in the event of disability or incapacity – A Living Trust allows the Trustee to manage assets both before and after the death of the trust creator. A Living Trust is created during the lifetime of the creator and assets are transferred into the trust at that time. While the creator is usually the trustee of the trust, trust provisions can provide for a substitute trustee in the event the creator becomes disabled or incapacitated. This type of provision allows for a more comprehensive method to handle a person’s assets in the event of a disability. While a power of attorney can also be used to accomplish this task, the trust provides a more centralized and structured approach and reduces the problems associated with having a bank or other financial institution raise questions regarding the power of attorney. While banks and other financial institutions are now required to accept and follow the instructions of an appointed agent under a power of attorney [New York General Objection Law Section 5-1504 (2) and 5-1510(2)(i)], there are occasions where difficulties still arise. Additionally, by creating a lifetime advanced directive for asset management in the case of disability, on Article 81 Guardianship Proceeding may be avoided.

New York Estate Attorneys are familiar with the various benefits that provisions in a Living Trust can provide. Since each individual’s needs and intentions are different it is important to explore the possible advantages provided by including this type of trust in an estate plan. Not every situation calls for a trust, but when necessary, a Living Trust can expedite estate administration and avoid the time and expense of lengthy Court proceedings.

June 19, 2013

New York Beneficiary Designations Are Always an Important Aspect of Estate Planning

by Jules M. Haas

Many situations have arisen over the years regarding the validity and effect of a beneficiary designation or clause that has been provided by a decedent.

The naming of a beneficiary of an asset or property can appear in a variety of forms. A person who prepares a Last Will includes provisions in the document naming various beneficiaries. These beneficiaries may receive a bequest of a specific amount of money or a more general gift of a share of an estate. Many other beneficiary designations occur outside of a Last Will. A person can designate a beneficiary of a life insurance policy or a retirement fund such as an Individual Retirement Account or 401K plan. Additionally, bank accounts can have a designated beneficiary. Such accounts are commonly known as In Trust For or ITF accounts, or Totten Trusts. A person who is named a beneficiary on this type of account typically has no right to receive any of the account funds until the death of the account owner.

In previous blog posts, the New York Probate Lawyer Blog has discussed the many problems that can arise when proper attention is not paid to these various beneficiary designations. For example, the beneficiary designations on a retirement account results in that account being paid to a named person. Such payment may conflict with the decedent’s intentions in a Last Will that disposed of an estate to an entirely different person. Also, intervening events such as the death of a named beneficiary or a divorce or a change in relationship may cause designations to become stale and not reflect the true desires of the decedent. Such a situation recently reached the United States Supreme Court in a case entitled Hillman v. Maretta. In Hillman a decedent had named his spouse as the beneficiary of his Federal Group Life Insurance. After getting a divorce, the decedent did not change the beneficiary designation to eliminate the former spouse. When the decedent died, the former spouse filed a claim for the insurance proceeds. The Hillman case involved the law of the State of Virginia which had a statute that provides that any death benefit to a former spouse is deemed revoked. Unfortunately, under our Federal system of laws, Federal law pre-empts State law and the revocation aspect of the Virginia law could not change the Federal insurance provision which provided for payment of the insurance proceeds to the ex-spouse.

However, Virginia had an additional provision in its law which provided that in the event of pre-emption, a lawsuit could be brought in Virginia by the rightful beneficiary against the ex-spouse to turn over the insurance proceeds. In Hillman the Supreme Court was asked to determine whether this provision allowing for the lawsuit, was also subject to Federal pre-emption. The Court found that the statute was pre-empted by Federal law and that this sort of end around the Federal directive was not available to defeat the ex-spouse’s right to receive the insurance proceeds. It is noted that New York has a statute that also revokes dispositions in the event of a divorce in Estates, Powers and Trusts Law Section 5-1.4.

The Hillman case is a red flag for all persons when preparing their New York Estate Plan. All assets need to be reviewed so that a complete analysis can be made as to the ownership of the asset and the name of any beneficiary who may have been named as a recipient. This complete review is required in order to avoid Estate Litigation and to facilitate Estate Settlement so that a decedent’s intentions and desires are fulfilled.

June 12, 2013

New York Estates May Require That a Bond Be Filed with the Surrogate’s Court

by Jules M. Haas

There are two fundamental procedural avenues that are followed when initiating proceedings in the Surrogate’s Court to administer a decedent’s estate. If the person died testate (having left a Last Will), the proceedings concern the Probate of the purported Will. If the person died intestate (without a Will), the proceedings are determined to be an Administration of the estate.

It is fairly common that a fiduciary or beneficiary of an estate may receive information that the fiduciary must be bonded or receive a bond in order to complete his appointment by the Surrogate’s. Court. The bonding requirement of an Executor (when a Will is probated) or an Administrator (in an intestate estate) is not as mysterious as it may sound.

A bond is essentially an insurance policy issued by a surety company that provides security for the estate assets. If the fiduciary misappropriates or improperly takes estate assets, the bonding company may be required to reimburse the estate for the loss and, in turn, try to recover the lost assets from the fiduciary.

In view of the financial risk that a surety incurs by issuing a bond to a fiduciary, the surety company will require that the fiduciary have a solid financial and credit background. I have been involved in a number of matters where a person was approved by the Surrogate’s Court to act as an Executor or Administrator only to be rejected by the bonding company. If the prospective fiduciary cannot obtain the bond required by the Court, he most likely would need to forfeit his appointment in favor or an alternate fiduciary who can satisfy the bonding company.

The amount of the bond required by the Court depends upon many factors. Primarily, the value of the decedent’s estate is the starting point. The greater the value of the assets, the larger the required bond. The bonding company will charge the estate an annual premium for the cost of the bond. The larger the amount of the bond, the larger the premium cost.

It is not uncommon to see standard language in a Last Will to the effect that the requirement of obtaining a bond by the Executor is waived. In most probate matters, the Court does not require the posting of a bond. However, there are a number of situations where even in probate proceedings the Court may require that a bond be filed with the Court as a condition to the fiduciary’s appointment. For example, if the Court is asked to issue Preliminary Letters Testamentary, Surrogate’s Court Procedure Act (SCPA) Section 1412(5) gives the Court discretion to require a bond.

The appointment of an Administrator in an intestate estate usually requires the filing of a bond (SCPA 805), although the filing can sometimes be avoided if all of the estate beneficiaries agree that the filing be dispensed with.

After Estate Settlement has been completed, the fiduciary is required to make a final distribution of estate assets to estate beneficiaries. When all beneficiaries have signed a Release Form or the Court has issued a Decree settling the fiduciary’s Accounting, the bond will be terminated.

I have represented many fiduciaries who have been required by the Court to obtain a Surety Bond. New York Estate Attorneys typically contact various agencies that act as brokers in connection with the Bond Application Process. Since it is not always easy for persons to qualify for a bond, it is a good idea to speak with a bonding company before papers or Petitions are submitted for Probate or Intestate Administration to get a preliminary determination as to whether the person applying to be appointed as a fiduciary can qualify for a bond required by the Court. I work closely with my clients in all aspects of estate administration and assist them with their bond applications.

June 5, 2013

Trust and Estate Disputes Often Involve a Variety of Issues

by Jules M. Haas

Controversies arising in Estate Planning, Estate Litigation and Estate Settlement involve a vast variety of issues. New York Estate Lawyers know that the many different problems that are found in the area of Trusts and Estates are as diverse and complex as the individuals whose lives are impacted by them. In today’s blog post, I will take the opportunity to discuss some recent examples of controversies with the goal of providing some insight into the different issues and problems each portrays.

The New York Probate Lawyer Blog has discussed in prior posts that a New York Executor or Administrator has an obligation to discover and to collect the assets of a decedent. This “marshaling” of estate property is one of a fiduciary’s jobs when engaging in the settlement of an estate. An interesting approach was taken by one estate administrator who sued Wells Fargo Bank for wrongful death, elder abuse and other grounds for causing a decedent’s death. In an article by Matt Reynolds in AlterNet dated May 14, 2013, it was reported that Wells Fargo’s alleged improper foreclosure action resulted in the decedent’s death after he collapsed in the courtroom in an attempt to oppose the bank’s action. The estate Administrator then sued the bank claiming that it should pay damages for commencing a negligent and wrongful and malicious foreclosure action.

As can be seen from the Wells Fargo case, the assets or potential assets of a decedent are not always readily apparent. While it may be rather easy to discover and collect some estate property such as bank accounts, a fiduciary should investigate and consider all potential sources that might benefit the estate and its beneficiaries.

Another recent news story reported that a World War II veteran was attempting to prevent his daughter from evicting him from his home. As reported by Debra Cassens Weiss in the ABA Journal on May 16, 2013, the veteran had given his daughter a Power of Attorney whereupon the daughter transferred the vet’s house to herself and her husband. Despite claims of undue influence, the vet’s attempt to void the transfer was denied and now the daughter was seeking to evict him from the home.

The giving and use of a Power of Attorney should be carefully considered by both the Principal and the Agent or Attorney-in-Fact. While a Power of Attorney can be useful in estate planning and in avoiding Guardianship Proceedings, the person who is given the authority must be someone that can be trusted and relied upon without any doubt. Also, the person receiving the power has a fiduciary duty to act responsibly and any transfer of property by the Attorney-in-Fact to himself is considered improper.

Professional advice from a New York Estate Planning Lawyer can be very helpful in considering and preparing a New York Power of Attorney.

May 29, 2013

New York Estate Requires a Careful Review of Estate Assets

by Jules M. Haas

A New York Estate Planning Lawyer is aware that it is of utmost importance to review a person’s assets when formulating an estate plan. Initially, it may seem that determining the value of assets is a primary concern so that estate taxes can be estimated and planned for and appropriate provisions can be made to afford varying estate shares to beneficiaries.

While estimated estate valuations should be known, it is equally important to obtain detailed information regarding the manner in which various estate assets are owned. For example, the title on a deed should be examined to determine whether the testator’s name actually appears on the deed. Sometimes, a testator will have inherited the property from a parent or another relative or friend under a Last Will. However, the actual transfer of title into the beneficiary’s name may not have been completed by the Executor. Also, title to the property may be held jointly with another person or as a tenant in common with each person having a separate share or interest in the asset.

These ownership interests are important since a Last Will is generally going to control the disposition of assets held in the decedent’s name alone. If the property is held with another as joint tenants with a right of survivorship, upon the death of a joint tenant the asset will automatically become owned in its entirety by the surviving joint tenant. This automatic ownership will occur notwithstanding provisions in a Last Will that attempt to give the same property to a different person.

Controversies created by estate property ownership cause major problems for Estate Settlement and often result in Estate Litigation. A recent example of such litigation appeared in the case Herskovitz v. Steinmetz, decided by Justice Richard F. Brown (Supreme Court, New York County) on May 16, 2013 and reported in the New York Law Journal on May 29, 2013. In Herskovitz, a decedent owned a cooperative apartment along with his wife. However, the cooperative stock certificate simply had both their names on the certificate without indicating whether the married parties intended a joint ownership or tenancy in common. Since the decedent’s Last Will left his residuary estate to his daughters, if the cooperative apartment was owned by the decedent as a tenant in common the decedent’s share would have gone to the daughters under his Last Will. However, a joint tenancy with the wife with a right of survivorship would result in the wife automatically owning the apartment upon the decedent’s death and the daughters receiving no interest in the apartment under the Will.

After reviewing the various evidence, which included joint tenancy language in the decedent’s cooperative Proprietary Lease, the Court found that the cooperative apartment was owned by the decedent and his wife as joint tenants with survivorship rights. It should be noted that the facts of this case involved the ownership of a cooperative apartment by a husband and wife where ownership began before a 1996 amendment to New York Estates, Powers and Trusts Law Section 6-2.2. Under paragraph (c) of the amended law, stock of a cooperative apartment issued to a husband and wife creates a tenancy by the entirety unless expressly declared otherwise. A tenancy by the entirety results in the surviving spouse automatically owning the entire asset upon the death of the other spouse.

Therefore, when planning an estate and preparing for the proper disposition of assets a good starting point is to review the title and official or registered ownership of the assets whether they be a bank account, real estate or securities so that the Last Will, Trust and the entire plan accurately provides for the disposition of estate assets.

May 22, 2013

New York Guardianship Can Be Contested or Based Upon Consent

by Jules M. Haas

New York Guardianship proceedings are controlled by Article 81 of the New York Mental Hygiene Law (“MHL”). The New York Probate Lawyer Blog has provided numerous posts regarding issues concerning this type of court proceeding.

The essence of a Guardianship proceeding is to determine whether the appointment is needed to assist a person with personal needs or property management. MHL Section 81.02(a)(2) provides that a Guardian can be appointed when the alleged incapacitated person (“AIP”) either “agrees to the appointment” or if the AIP is found to be “incapacitated”. In most proceedings, the determination of incapacity is the central focus of the Court hearing. The statute requires “clear and convincing” evidence to find incapacity. A court hearing involves many different participants which may include the petitioner (the person who commences the Court case), the AIP, a Court Evaluator, a Court-appointed attorney who represents the AIP, New York State Mental Hygiene Legal Service and the local Medicaid office such as the New York City Human Resources Administration. Also, family members and friends of the AIP may become participants if they intervene in the proceeding.

If the AIP opposes the appointment of a Guardian, the Court may hear the testimony of many witnesses and may review numerous documents with regard to its consideration of the necessity of an appointment. All of the aforementioned participants play an important role in the Court case and in providing the Court with all the information needed to make a final determination. In Contested Guardianship Proceedings, the Court wants to fully understand the situation and circumstances concerning the AIP so that it can assess whether the statutory mandate of “incapacity” has been shown.

It should be recognized that even in a case where “incapacity” is beyond dispute, the Court requires a hearing and the presentation of evidence regarding the need for the appointment. New York Guardianship Attorneys know that in such matters the Court will want to hear testimony from the petitioner and receive evidence of the AIP’s condition from a social worker or doctor or in some other acceptable form to document the basis for the Guardian’s appointment.

As noted earlier, MHL 81.02(a)(2) allows the appointment of a Guardian where a person consents to the appointment. Consentual guardianships appear to be the exception rather than the rule since there is always the issue as to whether the AIP has the capacity to make a knowing consent. However, there are occasions when the Court will find that consent is appropriate. Such was the situation in a recent case decided by Bronx Supreme Court Justice Alexander W. Hunter entitled “Matter of the Guardian for L.J.L.” decided on May 6, 2013 and reported in the New York Law Journal on May 17, 2013. In L.J.L. the Court held a hearing and recognized that Article 81 of the MHL does not provide any statutory guidance to assist the Court in deciding whether a person has the capacity to consent to a Guardian. However, after considering all of the evidence presented, the Court in L.J.L. found that the AIP had capacity to consent and appointed a Special Guardian of the person and property of the AIP for the limited period of one year.

May 15, 2013

New York Courts Prefer to Appoint Executors Selected by the Testator

by Jules M. Haas

Previous posts in the New York Probate Lawyer Blog discussed various issues concerning the qualifications of person to serve as an Executor or other fiduciary. Reference was made to New York Surrogate’s Court Procedure Act Section 707 which is entitled “Eligibility to receive letters.”

Notwithstanding the basic statutory qualifications, many situations arise where a person attempts to object to the appointment of an Executor named in a Last Will. For example, if a testator executes a Will and bequeaths his entire estate to his companion, and names the companion as the Executor, the children may object to the appointment. However, unless the children can demonstrate by particular evidence that the appointment was due to overreaching, or fraud or undue influence or some other improper factor, the Courts will honor the testator’s intention and appoint the nominated fiduciary.

This very situation recently arose in a case entitled “Will of Rudolph M. Barboni“, decided by Nassau Surrogate Edward W. McCarty III on April 25, 2013 and reported in the New York Law Journal on May 20, 2013. In Barboni the decedent named his friend as sole legatee and primary executor. Since the decedent’s children were only named as contingent beneficiaries they did not benefit from the Will. Since the children were contemplating Estate Litigation in the form of a Will Contest, they objected to the friend’s appointment as a Preliminary Executor.

The Court rejected the children’s attempt to prevent the appointment of the friend as a Preliminary Executor. It found that the children did not present any bona fide claims of wrongdoing or undue influence. Instead, the Court said that the children’s assertion of mere conclusory allegations were insufficient to defeat the testator’s nominated choice for appointment.

As noted in prior blogs, the selection of an Executor and other fiduciaries is an important part of estate planning. This is particularly true where litigation in the Surrogate’s Court may be expected in a Probate Proceeding or other Court proceeding. Therefore, it is important to review these issues with a New York Estate Planning Lawyer so the various problems and options concerning the naming of a fiduciary can be discussed. In some situations, it may be prudent to attempt to avoid the probate process and to create and fund a Living Trust. Such a Trust can function during the creator’s life and act as a Will substitute by providing for an automatic disposition to named beneficiaries upon the creator’s death. If a Will does not need to be probated, there is less opportunity for disgruntled family members to complain about the creator’s choice of fiduciaries. A Living Trust is just one example of alternative solutions that are available to meet the estate planning needs and desires of New Yorkers.

May 8, 2013

New York Executors Must Be Eligible To Be Appointed by the Court

by Jules M. Haas

The selection or nomination of an Executor or Trustee is one of the most important decisions made by the creator of a Last Will or Trust. No matter how precise and formulated an Estate Plan may be, the selection of a person as Executor who makes poor decisions or fails to follow the creator’s intentions can destroy the entire plan. As discussed in many posts in the New York Probate Lawyer Blog, when a person dies intestate (i.e., without a will), the provisions of the New York Surrogate’s Court Procedure Act (“SCPA”) Section 1001 determines who will be appointed as the Estate Administrator. Therefore, if a person takes the time and effort to avoid the statutory selection process and to put into writing an estate plan, it is imperative to make careful decisions regarding the selection of fiduciaries.

From a personal preference vantage point, there are no set criteria that a person must meet in order to be nominated as an executor or trustee. However, there are a number of important considerations. To begin with, the nominee should be someone the creator has full confidence in as to honestly and integrity. The creator also should feel assured that the nominee understands the creator’s intentions and desires and will do their best to carry out the creator’s plan in a manner that the creator would do. It is the job of the fiduciary in Estate Settlement to collect estate assets, pay estate bills and expenses and distribute the net estate to the beneficiaries. The Executor has a legal obligation to deal fairly and honestly and not to self-deal or take advantage of estate affairs for his own benefit.

New York Estate Lawyers are also aware that in many instances it is a good idea to discuss the possible appointment with the nominee to make certain that the nominee is agreeable to accepting the appointment when needed. If the potential nominee is reluctant to serve, it is better for the creator to find out now and be afforded the chance to make a different choice before a Will or Trust is finalized.

In most instances the choice of a fiduciary is easy since the selection is a spouse or children and the family situation is harmonious. However, where less cordial family relationships are present or persons other than close relatives are being selected, the choices may become more critical since the possibility of Estate Litigation or other Estate disputes require fiduciaries of good and strong character to protect the creator’s plan from attack. It should be recognized that a fiduciary does not need to be experienced or have any business or financial background. As long as the fiduciary has some common sense and the ability to make clear decisions, the fiduciary can hire professionals such as attorneys, accountants and financial advisors to help with technical advice in Estate Administration. Estate Lawyers in New York are generally experienced and can guide the Executor through the complexities of the Probate Process in Surrogate’s Court and estate settlement.

SCPA Section 707 entitled “Eligibility to receive letters” provides the basic statutory qualifications for appointment as a fiduciary. The statute sets forth a set of legal criteria for appointment. A person will be disqualified to be appointed if the person is an infant, or incompetent or a non-domiciliary alien, a felon or did not possess qualifications due to “substance abuse, dishonesty, improvidence, or want of understanding, [or] is otherwise unfit for the execution of the office.” The statute also provides that the court may reject a person who cannot “read or write the English language”. The selection of a fiduciary such as an Executor or Trustee is an important aspect of Estate Planning and Estate and Trust Administration. I have assisted clients over the years in creating their estate plans and have also represented many fiduciaries in estate and trust matters.