New York Probate Lawyer Blog

October 1, 2014

New York Estate Litigation Often Concerns Real Property

The settlement of a New York estate involves dealing with many different estate assets. These assets may include bank accounts, stocks and bonds and retirement funds. In many instances the most valuable item comprising a decedent’s estate is real property. Such property may be in the nature of the decedent’s residence or investment or commercial real estate.

It is not uncommon that when a person dies their home had been owned by them for many years or even decades. Very often the decedent lived in their home with other family members such as a spouse or children or other relatives like nieces and nephews. Problems tend to arise where the decedent was not survived by a spouse and other family members had been living with the decedent in the home. Typically, the real property residence is either given in a Last Will to persons other than, or in addition to, those who had been living there with the testator. When there is no Last Will and a person dies intestate, the interest in the real estate may pass to a group of individuals who are the decedent’s next of kin or distributees. Such persons may or may not include the residents of the property. Continue reading

September 24, 2014

A New York Guardianship Court Can Revoke a Power of Attorney and Advanced Directives

by Jules M. Haas

Guardianship proceedings in New York are governed by the provisions of Article 81 of the Mental Hygiene Law (“MHL”). Earlier posts in the New York Probate Lawyer Blog have discussed many of the aspects of guardianship for incapacitated persons (“IP”). For example, the statute provides for the appointment of a guardian for personal needs and a guardian for property management. Typically, when the Court appoints a guardian, the same individual will act in both capacities. However, there are instances when the Court will name different persons to serve in these capacities. This may occur when it is determined that a family member is best suited to make personal decisions for the incapacitated person but that someone else is more qualified to handle the IP’s financial affairs.

As discussed in earlier posts, the Court will conduct a hearing to determine whether any appointment is necessary. In many instances, the alleged incapacitated person (“AIP”) will have prepared and signed advanced directives prior to the commencement of the proceedings. Such advanced directives would include a Power of Attorney and Health Care Proxy. Generally the existence of these directives may constitute available resources that might be sufficient so as to preclude the necessity for a guardianship.

September 17, 2014

New York Surrogate’s Courts Require Proper Venue for Estate Proceedings

by Jules M. Haas

The Surrogate’s Courts in New York are located in the various counties. There is a Manhattan (New York County) Surrogate’s Court, Queens County Surrogate’s Court, Kings County Surrogate’s Court and so on. The County courts generally accept filings for estate matters that concern decedents that are domiciled in such county when they die. Surrogate’s Court Procedure Act (“SCPA”) Section 205 provides, in part, in paragraph 1 that “the proper venue for proceedings relating to such estates is the county of the decedent’s domicile at the time of his death“. Domicile is generally the location where a person has his primary home. See SCPA Section 103(15).

In view of the above provisions, upon the death of a person who has lived for example in Queens County, the proper court to file estate proceedings would be the Queens County Surrogate’s Court. Such proceedings may be a probate proceeding if the decedent left a Last Will or an Administration proceeding if the person died without a Will (“intestate”). Generally, if the case is filed in the wrong county the Court will reject it. Continue reading

September 10, 2014

New York Undue Influence Can Be Difficult to Prove

by Jules M. Haas

A New York Estate Attorney is familiar with cases where a family member claims that a lifetime transfer of assets or a disposition in a Last Will is the subject of undue influence. Such claims when they arise during the life of a person who is alleged to have been taken advantage of are often the focus of litigation in Article 81 Guardianship Proceedings. These cases are usually filed in the New York State Supreme Court. It is interesting to note that if the Guardianship judge finds that a property transfer was the result of undue influence, pursuant to Mental Hygiene Law 81.29, the Court can void or revoke such transfer. Also, once a Guardian of the Property is appointed for an incapacitated person, the Guardian can commence Court proceedings to recover property that was wrongfully transferred.

After a person has died, a claim of undue influence may be asserted in a Will Contest. Undue influence is one of the grounds upon which a Will can be contested in Surrogate’s Court estate litigation. Continue reading

September 3, 2014

New York Will Consents Can Delay Estate Settlement

by Jules M. Haas

Following a person’s death, a petition may be filed with the Surrogate’s Court for the probate of the decedent’s Last Will. Usually, the person nominated as the Executor in the Will engages a New York Estate Lawyer for representation in the probate proceeding. As discussed in prior posts in this blog, a decedent’s next of kin or distributees must receive notice regarding the probate process. Such distributees may sign a Waiver and Consent which provides that they do not object to the Will. If such consent is not forthcoming, then a Citation needs to be issued by the Court and served upon these potential objectants.

Will Contests and other estate litigation can take a long time to resolve. During the delay in obtaining a resolution of the probate issue, there are many matters concerning an estate that need to be attended to. For example, assets such as bank and stock accounts need to be collected, the decedent’s debts and estate obligations such as estate and income taxes must be paid and other assets such as real estate have to be secured and maintained. Continue reading

August 27, 2014

New York Will and Other Estate Planning Papers Should be Properly Stored

by Jules M. Haas

A New York Estate Plan can involve the preparation and execution of a number of different papers. To begin with, it is important that an individual consider advance planning documents which include a Durable Power of Attorney, a Living Will and a Health Care Proxy. Advance planning allows a person to select the agents that can make property and personal needs decisions and the documents can provide directions and an expression of intent as to the manner in which a persons affairs are to be handled. Additionally, such papers can help avoid the necessity of obtaining the appointment of an Article 81 Guardian.

Another consideration is the creation of a Living Trust which can provide both lifetime and post-death provisions for property disposition. Finally, a Last Will provides for the manner in which a decedent’s administration estate is to be settled and distributed. A Last Will can contain many different types of bequests and can provide for tax planning and the creation of testamentary trusts including the creation of a Supplemental Needs Trust. Continue reading

August 19, 2014

New York Non-Marital Children May Lose Their Inheritance

by Jules M. Haas

New York Estate Lawyers are aware of the importance of proper estate planning. Such planning may include the preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. By creating the above papers a person can identify the individuals that they want to inherit their estate and supervise the disposition of their property and personal affairs.

In the course of estate settlement when a person dies without a Last Will or the creation of a Living Trust, the assets owned in his name may be distributed pursuant to the New York intestacy laws contained in Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1. However, where there are non-marital children, such individuals can inherit from their mother but must provide various forms of proof in order to inherit from their father. The New York Probate Lawyer Blog has discussed this issue in earlier posts. EPTL 4-1.2 entitled “Inheritance by non-marital children” states that inheritance from the non-marital father requires proof in various forms such as an order of filiation. Also, paternity can be shown by clear and convincing evidence from genetic marker testing or that the father “openly and notoriously acknowledged the child as his own. . . .” Continue reading

August 13, 2014

New York Advance Directives Can Avoid The Appointment of a Guardian

by Jules M. Haas

The New York Guardianship Law is contained in Article 81 of the Mental Hygiene Law (“MHL”). As discussed in numerous posts in the New York Probate Lawyer Blog, a Court will appoint a Guardian for an individual’s property management and personal needs if it determines that the person is incapacitated. The Guardianship law serves a very useful purpose in providing a process by which family members or others concerned about someone’s well-being can obtain assistance from the Court to protect a person who is unable to care for themself. There are many situations that can result in an incapacity such as an accident or an illness in the form of a stroke, heart attack or similar occurrence. Incapacity may also result from the onset of Alzheimer’s disease or dementia.

As noted in earlier posts, proper estate planning, which includes the use of advance directives such as a Power of Attorney, Health Care Proxy, Living Will and Living Trust, may avoid the need for a Court appointed Guardian. These advance directives allow a person to select their agents and representatives who are to have the authority to make property management and health care decisions without the need for a Guardianship proceeding and the appointment of a Guardian who may not have been a person’s first choice to handle his affairs. Continue reading

August 6, 2014

A New York Will Should Contain Clear Language to Create A Supplemental Needs Trust

by Jules M. Haas

A New York Estate Lawyer is familiar with the manner in which a Last Will should be prepared. Among the fundamental rules when drafting a Will is to make certain that the provisions clearly set forth the manner in which the testator intends to dispose of assets. The spelling of the names of beneficiaries should be correct along with their relation to the testator, such as a child, brother or friend. Other provisions such as those relating to the amount or percentage of a bequest need to be delineated and the terms of any testamentary trust or other instructions should be spelled out to avoid any confusion.

Unfortunately, there are many instances where the language of a Will or a Trust is unclear or ambiguous and estate litigation in the form of a Will construction proceeding is needed to resolve the controversy over the document’s meaning and the proper distribution of estate assets. In Matter of Romanello, decided by Manhattan Surrogate Nora Anderson on July 17, 2014, the Court was presented with a Last Will that contained a testamentary trust. Although the Will referred to the trust as a “special need trust fund,” the language of the trust did not comply with Estates, Powers and Trusts Law Section 7-1.12 which is entitled “Supplemental needs trusts established for persons with severe and chronic or persistent disabilities“. Continue reading

August 1, 2014

A New York No Contest Clause In a Will May Be Difficult to Interpret

by Jules M. Haas

A New York Estate Lawyer is familiar with the various provisions of the Estates, Powers and Trusts Law (“EPTL”) and the Surrogate’s Court Procedure Act (“SCPA”) that impact estate planning. One of the provisions of the law that has caused much controversy over the years concerns the commonly known “no contest clause”. Section 3-3.5 of the EPTL contains the authority and rules regarding these clauses. While the statute allows the use of this limiting language in a Will, the statute also provides some limitations. For example, EPTL 3-3.5 states that the contest provision is not breached when an infant or incompetent opposes probate. Thus, such individuals do not forfeit their inheritance under the Will. The statute also allows pre-objection discovery under SCPA 1404 as to the witnesses to the Will, the Will’s preparer, the nominated executor and the proponent without resulting in any loss of beneficiary status under the Will.

In many instances the language of a no-contest clause in a Will may be unclear as to the extent of the conduct resulting in a forfeiture. An interesting example requiring interpretation of such a clause was presented in Matter of Prevratil decided by the Appellate Division 3rd Dept. on July 24, 2014. In Prevratil, a disinherited son filed objections to the probate of a 2011 Will that had made no provision for him. The son had been the sole beneficiary to an earlier 2006 Will. The 2011 Will contained a no contest clause. Since the named executor of the 2011 Will initially refused to petition for its probate, the beneficiaries filed a petition for probate seeking letters of administration. The disinherited son asserted that the actions by the beneficiaries to have an administrator appointed circumvented the 2011 Will’s named executors and, therefore, amounted to a contest of the Will resulting in their forfeiture of their Will bequests. Continue reading