New York Probate Lawyer Blog

June 26, 2025

Did You Know That A New York Executor or Administrator Has A Duty To Provide A Full Accounting

There are many different aspects to the settlement of a New York estate. The initial stages of handling an estate involves the process of either probating a Last Will and Testament or obtaining the appointment of an estate administrator in the case of intestacy. Each of these proceedings, whether it may be probate or intestacy, can be complicated and lengthy in process. For example, a probate case in Surrogate’s Court may be delayed due to a Will Contest. As to an intestate administration, this type of matter can be burdened with the need for a kinship hearing or a dispute among heirs as to whom should be appointed as the estate administrator.

Once an Executor or Administrator is appointed for an estate, the fiduciary has an obligation to determine and collect estate assets and to resolve all issues which might affect the decedent’s estate. These issues may involve disputes or litigation with creditors or the sale of assets such as real estate or a cooperative apartment. There may be ongoing expenses due to loans or mortgages and even foreclosure proceedings.

Throughout all the steps a fiduciary must engage in, he owes a fiduciary duty to the beneficiaries to act properly and protect the estate’s interest. All of a fiduciary’s actions are subject to review and approval. This approval process is completed by a fiduciary through preparing an Accounting of his acts. A fiduciary accounting is a document which reflects in various Schedules a financial picture of the estate. The New York Probate Lawyer Blog has previously published many articles concerning accountings and also estate settlement including probate and intestate administration.

June 16, 2025

The Role of a Pubic Administrator in New York Estates- Part II

by Jules M. Haas

In an earlier blog-post on April 25, 2025 in the New York Probate Lawyer Blog, the role of a Public Administrator was examined. As discussed in the post, the Public Administrator is a government agency in New York City. Each New York City County has a different Administrator whose role is to handle estates of decedent’s primarily where there is no other person available or qualified to do so. This situation arises most commonly where an individual dies without any known next of kin or the only known heirs are cousins or more distant relatives.

There are many additional situations in estate matters in the New York Surrogate’s Court where the appointment of a Public Administrator may occur. Another likely situation is where estate litigation is pending and various parties cannot agree to the appointment of an estate fiduciary. Similarly, it may appear in a particular case that a person who was otherwise a possible appointee cannot or should not serve as an Executor or Administrator due to a conflict or other disqualifying factor. Also, in some estates the Court may require that the appropriate fiduciary file with the Court a Surety bond as security for his appointment. If the individual is unable to qualify for a bond due to poor financial credit or some other reason, it may be necessary to have a Public Administrator act as Administrator or Executor since the public official does not need to be bonded.

Recently, there have been a number of Surrogate’s Court cases where the Court has resorted to the appointment of a Public Administrator to facilitate estate settlement. In a Manhattan estate case entitled Will of Magdalini Jacobs, decided by Manhattan Surrogate Hilary Gingold on May 29, 2025, the Court appointed the Public Administrator of New York County to administer a decedent’s estate. In Jacobs, the decedent was survived by two daughters one of whom petitioned the Court to be appointed as Administrator c.t.a. The non-petitioning daughter objected to her sister’s appointment and questioned certain post-death actions by the Petitioner. At a Court conference, neither party would consent to the appointment of the other and alleged that the other party was unfit to act as a fiduciary. In view of this circumstance, the Court appointed the Public Administrator as Temporary Administrator in the interest of justice.

May 29, 2025

The Role of A Fiduciary When Discovering Elder Abuse and Misappropriation

by Jules M. Haas

As a New York Probate and Guardianship attorney there are many instances where the relationship between third-parties and a Decedent or Incapacitated Person raise cause for concern. The effects of elder abuse or undue influence can disrupt or obliterate what might have been an entirely different disposition of a person’s assets.

The New York Guardian statutes contained in Article 81 of the Mental Hygiene Law make provision for the appointment of a Guardian for a person’s personal needs and property management. The essential element of the statute is appointing a Guardian for someone who is incapacitated. Mental Hygiene Law §81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” provides that incapacity requires a determination that someone is likely to suffer harm because they cannot provide for their needs and are unable to appreciate and understand their disability. In many instances Guardianship proceedings are commenced due to various cognitive and other mental or physical issues which drastically inhibit a person’s ability to function. It is under these circumstances that third parties may take advantage of a person’s vulnerability.

It is not uncommon to find that an incapacitated person’s finances have been manipulated or appropriated. Ownership papers such as deeds and financial accounts may be wrongfully transferred or names added providing for easy access to an unwanted person. Fortunately, the Guardianship laws contain provisions whereby a Guardianship Court can undue this type of damage. Proceedings can be brought in the Court to force a wrongdoer to return or turn over wrongfully obtained assets. Mental Hygiene Law §81.29 allows the Court to revoke a power of attorney, a health care proxy, a contract or conveyance which the Court finds was made during incapacity. However, notwithstanding this broad power, the Guardianship Court cannot revoke a Last Will and Testament. If a Last Will was executed at a time when a person may have been improperly influenced or lacking capacity, the challenge to the document would have to take place after death in the Surrogate’s Court.

May 8, 2025

Revoking The Appointment of A New York Executor or Administrator

by Jules M. Haas

The starting point of an estate is the appointment of an estate fiduciary. When a decedent leaves a Last Will and Testament, the Will must be admitted to probate in order for its terms to become effective. The Court typically appoints the Executor who has been nominated in the Will. Letters Testamentary are then issued. The New York Probate Lawyer Blog has published numerous articles concerning probate and estate settlement.

If a decedent does not leave a Will the Court appoints an estate Administrator. The persons who qualify for appointment are usually the decedent’s next of kin. Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” contains the provisions regarding the appointment of estate administrators.

After an Executor or Administrator is appointed, the fiduciary takes on the responsibility of settling the estate. The decedent’s assets must be identified and collected. Unpaid bills, debts and claims need to be reviewed and contested or satisfied. Various assets such as real estate may need to be sold.

April 25, 2025

The Role of a Public Administrator in New York Estates

by Jules M. Haas

After the death of an individual, it may be necessary to administer a decedent’s estate. This is essential when a person dies leaving assets such as financial accounts or real estate owned in the person’s name. In cases where a decedent’s assets are held in his name along with another person, such as joint bank accounts or with named beneficiaries, administration may not be needed. This is because such assets pass to the joint owner or beneficiary automatically by operation of law. As an example, if a person dies and leaves a 401K financial account with a relative named as beneficiary, then this asset will be paid directly to the named beneficiary without estate administration. The New York Probate Lawyer Blog contains many articles discussing estate settlement.

When assets are held in a decedent’s name alone, these items need to be distributed in a certain manner. If there is a Last Will and Testament, the Will must be probated and the terms of the Will followed for asset distribution. If a person dies intestate, without a Will, then his estate is distributed according to the laws of intestacy. The decedent’s distributees (heirs) are entitled to receive the estate amounts. Typically, the person in charge of handling the affairs of an estate is an executor under a Will or a family member who qualifies to act as an estate administrator according to the intestacy provisions in the Surrogate’s Court Procedure Act.

In cases where there is no available or appropriate person to be appointed to control estate affairs the Court might appoint a Public Administrator. The office of a Public Administrator in New York City is a government agency. The Public Administrator in each County has responsibility for handling the estates of decedent’s where there is no one else qualified to do so. Attorneys who represent the Pubic Administrator handle the Surrogate’s Court proceedings.

April 8, 2025

Did You Know That A Person Must Have Standing To File Objections To A New York Last Will and Testament

by Jules M. Haas

The New York Probate Lawyer Blog has published many articles concerning New York trusts and estates and the settlement of probate and intestate estates. When a person dies, a determination needs to be made as to whether he left a Last Will and Testament. If so, it is important to see whether the Will document is an original or a copy. This is because it is extremely difficult to probate a copy of a Will.

Surrogate’s Court Procedure Act (SCPA) section 1407 entitled “Proof of lost or destroyed will”, sets forth the requirements to prove a Will where the original cannot be located. The prevailing rule in New York is that if the original of a Will was known to be in the possession of a decedent at the time of death and the original cannot be found, there is a presumption that the Will was revoked by the decedent.

Assuming that an original Will is located, the document must be filed with the Surrogate’s Court for probate. The probate process in New York includes the filing of a Petition for Probate. The petition contains information regarding the names and addresses of a decedent’s next of kin (“distributees”), information regarding the Will provisions and also the value of the probate estate.

March 20, 2025

Insight Into Complexities Concerning The Appointment and Removal of Executors and Administrators

by Jules M. Haas

The appointment of an Executor or Administrator to represent a New York estate may, at first, seem rather simple. If a person dies without a Last Will and Testament the estate is inherited by the decedent’s next of kin, known as distributees. Pursuant to Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, the persons who inherit are listed in the order of their kinship to the decedent, i.e. spouse, then children and so on.

Concomitant to this statute is Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting Letters of Administration”, which gives the same priority to heirs to be appointed as a decedent’s intestate estate Administrator. Problems arise regarding the actual appointment for numerous reasons. The New York Probate Lawyer Blog has published many articles concerning the appointment of New York estate fiduciaries. One major area of contention arises when there are multiple individuals who have an equal priority right to appointment who are competing against each other and contesting the other persons appointment. This circumstance often arises when a decedent’s children or brothers and sisters are seeking appointment. The Surrogate’s Court typically is called upon to resolve or rule on such disputes.

In a situation where a person dies leaving a Will, the document typically contains a provision nominating an Executor and usually one or more successor Executors. When this occurs, the nominated fiduciary has the priority to seek appointment as Executor.

March 4, 2025

New York Article 81 Guardianship: Some Interesting Aspects

by Jules M. Haas

Article 81 of the Mental Hygiene Law (MHL) provides the statutory provisions for adult Guardianship. Pursuant to this statute the Court is given the authority to appoint a Guardian for personal needs and/or property management. The New York Probate Lawyer Blog has published many articles regarding Guardianship as well as estate and trust issues.

As provided in MHL section 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” a Guardian may be appointed if it is determined that a person is incapacitated. A finding of incapacity must be based upon clear and convincing evidence that a person will suffer harm because they cannot attend to their personal or property needs and they do not understand or appreciate their disability.

These cases are typically filed in the Supreme Court in the County where the alleged incapacitated person is located. So, if a person is hospitalized in Brooklyn or Manhattan, such County is where the matter will be filed. A Guardianship proceeding is commenced by filing a Verified Petition and an Order to Show Cause with the Court. The Petition sets forth all of the information regarding the alleged incapacitated person including the nature of his disability, assets, family and the circumstances requiring the need for the appointment. After reviewing all of the papers submitted, the Court will sign an Order to Show Cause which contains the date, place and time of the hearing. It also contains the name of the persons appointed by the Court to act as Court Evaluator and Counsel for the alleged incapacitated person.

February 21, 2025

A No Contest Clause Cannot Prevent A Beneficiary From Seeking A Fiduciary Accounting

by Jules M. Haas

Estate planning in New York is important. It is the method by which a person can specify the manner by which assets can be distributed upon death or other situations. Documents which are typically associated with estate planning include a Last Will and Testament and a Living or Grantor Trust. Also, papers such as a Power of Attorney, Health Care Proxy and Living Will which are advance directives are usually associated with the estate planning process. The New York Probate Lawyer Blog has published many articles concerning estate planning.

A Will and Trust document typically contains various provisions concerning the disposition of assets and the designation of beneficiaries. The papers also contain designations of fiduciaries such as executors or trustees. Other terms may include fiduciary powers and clauses dealing with the payment of taxes.

In certain situations, a person may be concerned about whether assets should be disposed of by a Will or whether to use a revocable or living trust to avoid probate. There are various considerations on this topic. For example, a trust may be preferred in the event a person’s kinship is unclear and the goal is to avoid a kinship hearing in a Surrogate’s Court probate proceeding. Also, probate may need to be avoided if it is anticipated that there may be a Will Contest in the probate proceeding.

February 14, 2025

A Beneficiary May Be Required to Refund a Distribution Received From an Executor or Trustee

by Jules M. Haas

One aspect of estate settlement is the actual distribution of funds or other items to the ultimate beneficiaries of an estate or trust. As explained in many prior articles in the New York Probate Lawyer Blog there are three main categories involved in administering an estate. Briefly, the first stage involves the appointment of an estate fiduciary such as an executor or administrator. An Executor is appointed when a decedent dies leaving a Last Will and Testament. An Administrator is appointed when a decedent dies intestate without a Last Will.

The second phase of an estate is implementing administrative tasks such as collecting assets, paying debts, taxes and other obligations and finalizing the various aspects of a decedent’s affairs. This would also include selling a decedent’s house or other property, if necessary.

The third and final chapter involves the payment or distribution of assets. Such disposition will be controlled by the terms of a Will or is made in accordance with the statutory estate laws regarding intestate inheritance.