New York Probate Lawyer Blog

December 19, 2024

New York Estate Planning and the Probate Process

Estate planning is an important part of an overall financial plan. The New York Probate Lawyer Blog has published many articles discussing the various aspects of an estate plan. These items include a Last Will and Testament, Living Will, Revocable Trust, Health Care Proxy and Power of Attorney. Some of these documents, such as a Health Care Proxy and Power of Attorney, are usually referred to as advance directives.

Advance directives provide a lifetime plan for the handling of personal needs and financial management in the event a person cannot make these decisions for themselves. In many instances, the existence of advance directives may avoid the necessity of having to commence legal proceedings to obtain the judicial appointment of an Article 81 Guardian. I have represented many clients in New York Guardianship cases.

With regard to planning through the use of a Will, a major consideration should always be to anticipate every post-death issue. For example, thought should be given as to whether there may be a potential Will Contest. A well drafted Will, which is prepared by an attorney who supervises the Will execution, is afforded a number of presumptions as to validity. However, there is nothing to prevent an heir who has been disinherited from filing objections to a Will in the Surrogate’s Court. Clients often ask about including a no-contest clause in a Will. However, a no-contest clause only relates to possible forfeiture of a bequest if a Will is challenged. Where someone is disinherited, there is no penalty for filing a Will Contest. One solution to avoid a contested probate is by having all assets transferred into a Revocable Trust during a decedent’s lifetime. This alternative, however, does not avoid the possibility of a disgruntled distributee from challenging the validity of a trust based upon undue influence or other grounds such as lack of capacity.

December 12, 2024

New York Will Contests Involve Pre-Objection Discovery

by Jules M. Haas

Estate planning in New York is important since it provides a procedure for a person to document the manner in which assets are to be disposed of at death. There are many different aspects to planning an estate, which also may include lifetime directives in the form of advance directives. The various documents which may be involved include a Last Will and Testament, Living Will, Revocable Trust, Power of Attorney and Health Care Proxy.

First and foremost, a Will is a document which disposes of assets which are held by a person in his own name. It may contain bequests of specific amounts of funds or may provide for dispositions in shares or percentages. The New York Probate Lawyer Blog has published many articles concerning the creation of Wills and also the probate process.

When a Will is filed with the Surrogate’s Court for probate, there is a requirement that all of a decedent’s next of kin be notified. This is due to the fact that next of kin or distributees have a right to contest a Will. Will Contests are not uncommon. Family members who are either disinherited or did not receive what they believe to be an appropriate share of an estate often seek to invalidate a propounded Will.

November 25, 2024

Article 81 Guardianships – When Termination May Be Appropriate

by Jules M. Haas

Article 81 of the New York Mental Hygiene Law (MHL) contains the provisions concerning the appointment of a Guardian for an individual. There are basically two types of Guardians – a Guardian for Personal Needs and a Guardian for Property Management. The New York Probate Lawyer Blog has published many articles concerning Guardianships in New York.

In short, MHL Section 81.02 provides that a Guardian may be appointed when it is necessary for the personal needs, property management or safety of an individual. A finding of incapacity based upon clear and convincing evidence is required. Incapacity means that a person cannot handle personal or property management functions and cannot appreciate or understand the circumstances surrounding such disability. As a result, the person is at risk of suffering harm. The Guardianship Court focuses on a person’s ability to handle activities of daily living.

A Guardianship case in New York is started by the filing of a Petition with the Supreme Court typically in the County where the alleged incapacitated person (“AIP”) is located. The Guardianship Court will set a hearing date to hear testimony from the parties. Also, the Court may appoint an attorney to represent the AIP at the hearing. A Court Evaluator may also be appointed to review all of the facts, interview the AIP, the petitioner and other persons who have relevant information. The Court Evaluator then prepares a report for the Court with recommendations as to whether a Guardian should be appointed, and, if so, who should be appointed. This process may take at least a few months. Temporary Guardianship appointments are sometimes granted in appropriate situations.

November 14, 2024

The Domicile of a Decedent is Important for Estate Administration

by Jules M. Haas

The New York Probate Lawyer Blog has published many articles about administering a New York Estate. At the commencement of administration, an essential issue is whether a decedent had executed a Last Will and Testament, or whether he died intestate. This issue determines the type of proceeding which will be filed in the Surrogate’s Court. If there is a Will, a probate proceeding is started. Where there is no Will, a petition for letters of administration is utilized. In each case, the goal is to obtain the appointment of an estate fiduciary, whether an executor or administrator.

Also, each type of proceeding carries with it a host of other issues. A probate proceeding may involve the possibility of a Will Contest. Where there is no Will, there may be a contest as to which distributee should be appointed as the estate administrator. However, an issue which is pervasive regardless of the type of proceeding is where a decedent was domiciled at the time of death. Domicile is the place where a person has their fixed or primary home. Someone can have many residences but only one primary domicile. Domicile is important because the laws of a person’s domicile basically control many of the substantive issues regarding a person’s estate. Also, a Surrogate’s Court may not accept a case for filing and determination if a decedent was not domiciled within the Court’s jurisdiction.

For example, in some estates there may be an issue regarding a spouse’s right of election to receive a minimum share of a decedent’s estate. Generally, the issue of a right of election is controlled by the laws in a decedent’s domicile. Also, a New York Surrogate’s Court will generally not accept an estate filing for a decedent whose domicile is New Jersey.

November 11, 2024

Determining Kinship is Important to Settle a New York Estate

by Jules M. Haas

There are many issues that arise concerning identifying the next of kin of a decedent. These issues arise in different contexts. If a decedent died and left a Last Will and Testament, the probate process requires that all of a decedent’s next of kin (distributees) be given notice of the probate proceeding. This is because distributees have a right to contest a Will. A probate petition lists the identity and interests of these persons. Distributees can execute a Waiver form consenting to the probate of a Will. Alternatively, a distributee will receive a Citation from the Surrogate’s Court setting a Court date to advise whether a Will Contest is intended.

In a probate case another kinship issue which may arise is whether a decedent was married. If so, a surviving spouse would be able to file for a spousal election if the spouse was disinherited in some manner. A spousal election ensures that a surviving spouse receives at least one-third (1/3) of a decedent’s net estate. Determining a right of election amount can be complicated. The New York Probate Lawyer Blog has published many articles relating to probate, estate settlement and also spousal right of election.

Determining kinship is also essential with regard to intestate estates where there is no Will. In these matters, a decedent’s distributees inherit an estate pursuant to EPTL 4-1.1 entitled “Descent and distribution of a decedent’s estate.” Often, there are disputes among distributees as to which person or persons are to be appointed as an estate administrator. SCPA Section 1001 entitled “order of priority for granting letters of administration” designates the distributees who would have standing to be appointed.

October 31, 2024

A Constructive Trust May Help Estate Beneficiaries

by Jules M. Haas

Disputes arise all of the time following the death of a decedent. These matters can take many different forms. If a decedent left a Last Will and Testament issues may exist as to whether the Will is valid. There may be questions as to due execution, testamentary capacity or undue influence. These matters would be examined in the course of a probate proceeding in the Surrogate’s Court.

In the event a decedent did not have a Will, a proceeding for letters of administration would be initiated to settle the intestate estate. Issues which may arise include the appointment of an administrator. There may be heirs at law who filed competing administration petitions seeking their appointment as administrators. Additionally, the identity of the estate heirs or distributees may be in doubt. In such cases, a determination of kinship and a kinship hearing may be necessary. Determining kinship may be complicated and require the services of a professional genealogist to search for records and lost or unknown heirs. Also, genetic testing may be used to find out if parties are related. The New York Probate Lawyer Blog publishes many articles regarding probate and estate administration. Feel free to review the blog posts and my website for additional helpful information.

In a different context, estate problems can surface where a decedent made certain transfers of assets during life. Although these lifetime transfers have been completed, surviving relatives may claim that the transfers were improper or that the transfers were part of an agreement whereby the transferred property was to be disposed of by the transferee and not kept for his sole benefit. The scenarios in these matters are varied. This is where the concept of a constructive trust arises. It is best described by looking at a recent estate case entitled Versace v. Robinson, decided by Columbia County Supreme Court Justice Richard Mott. In Versace, the litigants’ mother had owned real property. Before her death, the mother transferred the property to the daughter and reserved a life estate. The son asserted that the property was deeded solely to the daughter, and not to both children, to avoid any liens which might arise due to the son’s businesses. The son also asserted that there was an agreement between the parties that when the mother died, the property would be sold and the proceeds paid equally to the son and daughter. Of course, when the mother died, the daughter refused to recognize the son’s interest in the property or the agreement.

October 18, 2024

New York Compulsory Accounting – Additional Considerations

by Jules M. Haas

The New York Probate Lawyer Blog has published numerous articles concerning all aspects of probate, administration and Surrogate’s Court and estate matters. Most recently, an article was published on October 8, 2024 entitled “A Compulsory Accounting May Be Required for the Best Interests of an Estate”, which discussed the consideration by the Court of a compulsory accounting in the context of the best interests of an estate. As a recap, estate fiduciaries such as an executor or administrator are required to provide estate beneficiaries with an accounting of their fiduciary activities. An accounting is comprised of numerous schedules which contain itemized and detailed descriptions of the financial activities which took place during the course of the administration of a trust or an estate. These various schedules include lists and values of the assets received, income received, investments that were made, expenditures which were made and a statement of the balance of assets remaining on hand. There is also a schedule showing a computation of fiduciary commissions.

In cases where a fiduciary is not providing information to beneficiaries, a compulsory accounting proceeding can be filed with the Surrogate’s Court to request that the Court direct a fiduciary to file an accounting. Surrogate’s Court Procedure Act Section 2205 entitled “Compulsory account and related relief on a court’s own initiative or on petition; who may petition” and Section 2206 entitled “Compulsory account and related relief; proceedings thereupon” provide the provisions for implementing this procedure.

I recently had occasion in a Manhattan estate to file a petition for a client to obtain a compulsory accounting. The petitioner was the surviving spouse of a decedent. Since the petitioner was not named as a beneficiary in the decedent’s Last Will and Testament, a spousal right of election was filed with the Court. A right of election is provided for under Estates Powers and Trusts Law Section 5-1.1-A entitled “A Right of election by surviving spouse”. This statute allows a surviving spouse to receive one-third (1/3) of a decedent’s net estate.

October 9, 2024

A Compulsory Accounting May Be Required for the Best Interests of an Estate

by Jules M. Haas

As previously discussed in this blog, there are many instances in which the Surrogate’s Court may appoint a fiduciary. Surrogate’s Court Procedure Act (SCPA) Section 103(21) includes among its definition of “fiduciary” an administrator, temporary administrator, executor, preliminary executor, and testamentary trustee. The New York Probate Lawyer Blog has published many articles regarding the appointment and responsibilities of a fiduciary.

The SCPA and the Estates, Powers and Trusts Law (EPTL) contain many provisions regarding the duties and obligations of fiduciaries. For example, EPTL Section 11-1.1 entitled “Fiduciaries’ powers” sets forth numerous powers granted to a fiduciary, such as investing or selling assets, paying expenses and making distributions. Also, a fiduciary is required to act fairly and not take personal advantage or engage in self-dealing. Beneficiaries are to be treated equally subject to the terms of the appointing documents, such as a Last Will or Trust. If a fiduciary acts improperly he may be found to have breached his fiduciary duty and be subject to a surcharge for improper conduct.

As part of his duties, a fiduciary is required to provide beneficiaries with an accounting of his activities. This accounting is in the form of a financial statement setting forth all of the items and matters which have taken place during the course of a fiduciary’s tenure. In most instances, an executor or administrator or trustee will voluntarily provide beneficiaries with an accounting. However, if a fiduciary fails to do so, SCPA 2205 entitled “Compulsory account and related relief on a court’s own initiative or on petition; who may petition” provides the process to require that an accounting be filed by a fiduciary with the Court. Even though a fiduciary has a duty to account, the Court will only compel an accounting if it is in the estate’s best interest. Of course, determining best interest is subject to the particular facts in each case. This issue was recently reviewed in a Manhattan estate case entitled Matter of Michael, decided by Manhattan Surrogate Hilary Gingold on September 19, 2024. In Michael, a contingent beneficiary of a testamentary trust filed a petition for a compulsory accounting. After reviewing the terms of the Will in which the trust was created and the activities of the trust, the Court declined to granted the petition. The Surrogate noted that the entire trust had been previously distributed to the primary beneficiary in accordance with trustees’ absolute authority and that the petitioner had no interest in the trust due to petitioner’s contingent interest. Additionally, the trustees had voluntarily provided the petitioner with a great amount of financial accounting information. The Court found that it would not be in the trust’s best interest to expend the time and expense to engage in an accounting proceeding under these circumstances.

October 7, 2024

Removal of a Fiduciary Requires Specific Facts

by Jules M. Haas

There are numerous occasions where the Surrogate’s Court appoints a fiduciary to oversee an estate or a trust. With regard to an estate, the Court may need to appoint an executor or a preliminary executor in the case of a probate proceeding. If a decedent dies intestate, it may be necessary to appoint an administrator or temporary administrator.

In addition to the above fiduciaries, the Court may have occasion to appoint a testamentary trustee for a trust created in a Last Will. Also, the Court may obtain jurisdiction over trustees who are appointed in a Living Trust.

The Court always gives deference to trustees and executors who have been designated by a decedent or a person who has created a trust. This is because the Courts view such appointment as furthering the interests or intentions of the person who made the appointment.

September 13, 2024

New York Guardianship Cases May Involve Litigation

by Jules M. Haas

Article 81 of the New York Mental Hygiene Law contains the provisions for the appointment of a Guardian. Guardianship can involve an appointment for personal needs such as health care or living environment. There is also a Guardianship for property management which concerns a person’s financial affairs. The New York Probate Lawyer Blog contains many posts relating to Guardianships.

As has been discussed in earlier blogs, MHL Section 81.02 provides that a Guardian may be appointed when or if it is found to be necessary for personal needs or property management and that a person is incapacitated. This means that the alleged incapacitated person (“AIP”) will suffer harm because they cannot understand and appreciate the consequences and nature of their disability.

Many Guardianship cases are relatively uncomplicated in that the AIP is clearly unable to handle his affairs and that a failure to appointed a Guardian would pose a risk to the personal and/or financial needs of the person. For example, a person who is paralyzed due to a stroke is in need of assistance. Nevertheless, there are many cases where litigation and conflict arise. The imposition of a Guardian requires the presentation of clear and convincing evidence (MHL Section 81.02(b)).