An Executor or Administrator in New York has a duty to discover and collect all of the assets that rightfully belong to a decedent’s estate. If the estate fiduciary fails to perform this task properly the estate beneficiaries may claim that there was a breach of a fiduciary duty.
Identifying and collecting estate assets requires that the fiduciary act diligently and pursue proper avenues to complete his obligations. The New York Probate Lawyer Blog has previously discussed some of the Estate Litigation procedures that can be used to recover estate property. For example, Surrogate’s Court Procedure Act (SCPA) Section 2103 provides a very common method to obtain estate assets. This statute is entitled “Proceeding by fiduciary to discover property withheld or obtain information.” When an executor or administrator has information that a third party has possession of an asset that belongs to an estate, the fiduciary can file a petition with the Surrogate’s Court to obtain the property. SCPA Sections 2103 and 2104 contemplate two types of Court proceedings. First, the statute allows the fiduciary to obtain information from the third-party by deposition questions and paper discovery as to whether the person is actually in possession of estate property. If so, the statute then provides for a proceeding in which the actual ownership of the property can be determined. Continue reading
New York Estate Settlement can be complicated by many different factors. After a person dies a fiduciary such as an Executor or Administrator will be appointed to handle estate affairs. The New York Probate Lawyer Blog has provided numerous posts discussing the procedure to appoint an estate fiduciary. In short, where a decedent leaves a Last Will, the Will is submitted to the Surrogate’s Court for probate. When the Will is admitted to probate an Executor is appointed who is responsible for estate settlement.
When a decedent does not have a Last Will he is deemed to have died intestate. An Administrator is appointed for intestate estates. Typically, the Administrator is one or more of the decedent’s next of kin called distributees. The distributees, according to their relation to the decedent, have priority to be appointed as an Administrator. Continue reading
When a person dies, one of the first tasks that a family and fiduciary face is to take control over the decedent’s residence. New York estate lawyers are aware that accessing and securing a decedent’s home can often be difficult and complicated.
To begin with, when a decedent lived alone and passes away in their home premises, the police department may seal the apartment to prevent unwanted intruders. When an apartment is sealed it would be necessary to make an application to the Surrogate’s Court to allow the apartment to be searched for the existence of a Last Will or insurance policies. Continue reading
A Supplemental Needs Trust (SNT) is an important mechanism to provide financial security for persons with disabilities. The New York Probate Lawyer Blog has posted a number of articles regarding the requirements and benefits of a SNT.
Essentially, a SNT allows for funds to be held for the benefit of a person who is receiving government benefits such as Medicaid or Social Security Disability. Since the trust beneficiary can only receive benefits from the trust at the full discretion of the Trustee, the creation and existence of the trust will not diminish or effect the benefits the beneficiary receives from governmental sources. Also, there are guidelines that the Trustee must follow in making distributions from the SNT. Continue reading
Estate planning is an essential part of making certain that a person’s assets are managed and distributed in accordance with one’s intentions. New York Estate Lawyers counsel clients with regard to the preparation and execution of planning documents such as Last Wills, Living Wills, Health Care Proxies, Powers of Attorney and Living Trusts.
Once a person takes the time and effort to prepare the necessary planning papers it is important that the originals of the signed and notarized documents be maintained in a safe and secure location. Also, the papers should be stored in a place where they can be found and utilized should the occasion arise. Continue reading
One of the more common problems that is encountered by estate Executors and Administrators is the recovery of a decedent’s property from third parties. New York Estate Attorneys frequently need to counsel fiduciaries regarding the Court procedures to obtain assets that belong to an estate. I have represented fiduciaries in numerous cases to recover property.
Very often an Executor or Administrator is confronted with a situation where a house or apartment that was owned by the decedent continues to be occupied by persons’ after the decedent dies. Moreover, such occupants refuse to vacate the property which prevents the Executor from selling the property and completing estate settlement. Continue reading
All Estate cases involve determining the next of kin of the decedent. In a probate proceeding where a person dies and leaves a Last Will, the estate rules and procedures mandate that the decedent’s distributees (next of kin) be provided with official notice of the case. New York Estate lawyers have experience in preparing the probate petition and affidavit of kinship that the Surrogate’s Court wants to review before admitting a Last Will to probate.
In many instances a decedent dies intestate meaning there is no Will. As discussed in earlier posts in the New York Probate Lawyer Blog, where a person dies intestate, his estate is distributed to his next of kin. However, proving a person’s kinship presents many problems. Quite often a decedent is not survived by a close relative such as a spouse or child or even a sibling or niece or nephew. It may turn out that a decedent’s closest relative is a cousin. Kinship proceedings or kinship hearings are very common in what are known as cousin cases. Continue reading
The preparation of a Last Will is an essential part of estate planning. However, once a Will has been finalized and signed it is the final document that exists to reflect a decedent’s intentions regarding the disposition of his estate.
After the testator’s death, the Last Will that was created must be filed with the Surrogate’s Court. Such filing is the start of the Probate Process by which the Will is admitted to probate and its terms are validated. Continue reading
As the year 2015 comes to an end, it is a good time to revisit some basic planning goals. Much has been written about Advanced Planning. The New York Probate Lawyer Blog has discussed this topic in earlier posts. Essentially, Advanced Planning involves a number of considerations. Concerns regarding lifetime disabilities and incapacity may be addressed by preparing documents such as a Durable Power of Attorney, a Living Will, a Health Care Proxy and a Living Trust. Continue reading
Estate Settlement involves dealing with many different types of assets. New York City estate lawyers routinely find that a decedent was the owner of a cooperative apartment. The ownership nature of these apartments is comprised of shares of stock that the decedent owned in a cooperative corporation. As a shareholder of the corporation the decedent would also have been the lessee in a proprietary lease that provided for the decedent to reside in his apartment. A cooperative proprietary lease sets forth the rights and obligations that exist between the shareholder-lessee and the cooperative corporation-lessor. While the decedent was an owner of the shares of stock allocated to his apartment, the lease is really in the nature of creating a landlord-tenant type of relationship. Continue reading