Planning an Estate includes the preparation of a number of different documents. These can include a Last Will, Living Will and Health Care Proxy, Power of Attorney and Living Trust. The New York Probate Lawyer Blog has discussed the importance of estate planning in many articles.
A very important aspect in the preparation of planning documents is the necessity to clearly and precisely set forth the directions and provisions regarding the disposition of property. The primary and obvious reason for clarity is so the testator’s wishes can be easily carried out by the estate fiduciary. If the Last Will is clear as to the bequests and assets that the estate beneficiaries are to receive, the goals of estate planning can be easily achieved. Additionally, unambiguous provisions in estate planning papers can help avoid controversies among beneficiaries that result in Estate Litigation. Continue reading
The statutes concerning the appointment of a New York Guardian for a person who is incapacitated are located in Article 81 of the Mental Hygiene Law (MHL). There have been many articles posted concerning the law of guardianship in the New York Probate Lawyer Blog.
A Guardianship case is commenced by the preparation and filing of a proposed Order to Show Cause to be signed by the Court. Once it is signed, the Order to Show Cause will contain many items of information regarding the proposed guardianship hearing including the date upon which the hearing will be held, information regarding the appointed Court Evaluator and any court appointed attorney for the alleged incapacitated person (“AIP”). MHL Section 81.07 entitled “Notice” provides the form and many of items of information that need to be a part of the Order to Show Cause. The Order, when completed and signed by the Court, will then be served on the various parties who are interested in the proceeding or are otherwise specified in the Order as being entitled to receive a copy. If the Order to Show Cause and other papers are not properly served in accordance with the direction of the Court, the guardianship case cannot proceed. Continue reading
When a person dies without a Last Will he is said to have died intestate. The handling of an intestate estate falls under the heading of an administration proceeding as opposed to a probate proceeding when a person dies and leaves a Last Will. The fiduciary of an intestate estate is called an Administrator. The fiduciary of an estate where there is a Will is typically called an Executor. While a Will usually names and identifies the persons who are to be appointed as Executors, there is no such designation by a decedent when there is no Will. As a result, reference must be made to the provisions of the Surrogate’s Court Procedure Act (SCPA). Section 1001 of the SCPA provides a list of the decedent’s next of kin and others who have a right to be appointed as the estate administrator. The section is entitled “Order of priority for granting letters of administration”. The statutory list of persons who have the priority of appointment begins with the decedent’s spouse, and then goes to children, grandchildren, parents and more distant relatives. One of the problems encountered with appointing an administrator is that there may be multiple individuals who have the same priority rights to appointment and they may be adverse to each other. These situations typically result in estate litigation in the Surrogate’s Courts where the Court is called upon to decide which person or persons should be appointed as the fiduciary.
Additionally, there are cases where the person who has the priority for appointment as administrator is opposed by other interested parties who may assert that the proposed administrator is not appropriate or is unfit to serve as the estate fiduciary. Continue reading
The Estate Administration process involves many different issues. A New York Estate Lawyer typically represents a fiduciary, such as an Executor or Administrator, who is responsible for handling these matters. The collection of the decedent’s assets is always a primary function to be carried out. Some assets are easy to obtain such as bank accounts and brokerage accounts that are in the name of the decedent. However, many situations arise where the determination and collection of estate assets is extremely difficult and complex.
One area that consistently presents challenges concerns the ownership rights to real estate. Unfortunately, the names on deeds and title issues regarding prior deed transfers can present immense problems for a fiduciary. This is compounded by the fact that real estate interests tends to have large values. Therefore, parties with interests adverse to the estate have a tremendous incentive to interfere with or dispute estate ownership rights. Continue reading
The Executor or Administrator of an estate owes a duty of fair dealing to all of the estate beneficiaries. A New York Estate Lawyer who represents the estate fiduciary is aware that there must be a full accounting in order to finally settle the estate affairs.
In most cases, the estate fiduciary will prepare an estate accounting which specifies all of the assets and income that was collected by the estate. The accounting also lists all of the debts and administration expenses which were paid out of estate funds. The New York Probate Lawyer Blog has posted a number of articles discussing accountings in an estate. When the account is prepared, all of the estate beneficiaries have an opportunity to review the various schedules and to inquire as to any matters that might be questionable. This process is usually done on an informal basis. Once all of the interested parties are satisfied with the accounting, they typically sign a Release form that provides that they have no objection to the information in the accounting and thereby release the fiduciary from any claims they have regarding the fiduciary’s conduct in administering the estate. Continue reading
When a person dies without a Last Will he is said to have died intestate. As in all estate matters, a paramount issue is the determination of the decedent’s next of kin or distributees. The New York Probate Lawyer Blog has published many articles discussing the need to establish heirship. In many cases the Surrogate’s Court will require that there be a Kinship Hearing to legally determine the decedent’s closest living relatives. In an intestate estate the distributees get to receive a share of the estate. Estates Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, provides the priority of heirs who are to share in the estate.
An important issue that arises in kinship cases is that where a decedent was not married, and had non-marital children, there may be problems proving kinship for the unmarried father. EPTL 4-1.2 entitled “Inheritance by non-marital children” provides the requirements needed to demonstrate that a non-marital child is an heir of the deceased father. Continue reading
One of the fundamental aspects of estate planning and settling an estate is determining the nature of a person’s assets. When planning an estate a New York City Estate Attorney typically examines the ownership of various types of assets. For example, a bank account may be owned in a variety of ways. The account may be held in the name of a person alone or it may be in the name of the person with a designated beneficiary to receive the account funds on the death of the account holder. Additionally, the account may be held in the joint names of the person along with another person who has rights of survivorship. Thus, the account would be paid automatically to the surviving joint owner.
The issues that arise in connection with joint assets tend to fill the Surrogate’s Court calendars. The New York Probate Lawyer Blog has discussed in many posts that a Last Will only controls assets that are in a person’s name alone. Joint assets and other items such as retirement funds that have named beneficiaries are distributed outside of the Will by operation of law. Continue reading
There are many situations where the appointment of a Guardian in New York is a necessary and helpful event. The New York Probate Lawyer Blog has discussed various aspects of Guardianship Law in earlier posts. Article 81 of the New York Mental Hygiene Law (MHL) contains the statutes concerning the proceedings for a Guardianship appointment.
Essentially, there are two aspects of Guardianship. The Court can grant powers to provide for someone’s personal needs such as health care. MHL Section 81.22 entitled “Powers of guardian; personal needs”, lists various personal needs powers that a guardian would have over an incapacitated person. The Court can also grant powers for property management. MHL Section 81.21 entitled “Powers of guardian; property management”, list various property management powers that a guardian would have over an incapacitated person such as providing for managing the person’s financial affairs. Continue reading
When a person dies without a Last Will he is said to have died intestate. The Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL) have numerous provisions that control intestate proceedings. These provisions have been discussed in a number of earlier posts in the New York Probate Lawyer Blog.
For example, EPTL Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, sets forth the persons who have a right to receive a share of the intestate estate. As expected, a spouse and children have the primary right to share the estate. If there is no surviving spouse or child, then the next individuals in line to inherit are the decedent’s parents and, if none, to brothers and sisters. The statute then continues to provide for more remote heirs. Continue reading
New York Estate Planning Lawyers need to discuss many different issues with their clients. Among the most important considerations is the selection of Executors and Trustees. An Executor is nominated in a Last Will and Testament. Typically, the Will also provides the name of successor Executors in the event the primary nominee cannot or will not serve. A Trustee is also nominated to act in a Will provision regarding a testamentary trust. This is a trust that is created in the Will. There are also trustees that are nominated in trusts that are created outside of a Will in so-called inter vivos trusts. A Living Trust or Grantor Trust is a typical example.
When choosing a fiduciary such as an Executor or Trustee the creator should give the selection some basic considerations. These include some understanding as to whether the person nominated will accept the appointment. Some individuals do not want to accept the responsibility of acting as an Executor or Trustee or may not have the time to devote to this task. When selecting a fiduciary, the creator may want to first ask the prospective nominee if they would accept the appointment. Continue reading