Last Will

May 29, 2013

New York Estate Requires a Careful Review of Estate Assets

A New York Estate Planning Lawyer is aware that it is of utmost importance to review a person’s assets when formulating an estate plan. Initially, it may seem that determining the value of assets is a primary concern so that estate taxes can be estimated and planned for and appropriate provisions can be made to afford varying estate shares to beneficiaries.

While estimated estate valuations should be known, it is equally important to obtain detailed information regarding the manner in which various estate assets are owned. For example, the title on a deed should be examined to determine whether the testator’s name actually appears on the deed. Sometimes, a testator will have inherited the property from a parent or another relative or friend under a Last Will. However, the actual transfer of title into the beneficiary’s name may not have been completed by the Executor. Also, title to the property may be held jointly with another person or as a tenant in common with each person having a separate share or interest in the asset.

These ownership interests are important since a Last Will is generally going to control the disposition of assets held in the decedent’s name alone. If the property is held with another as joint tenants with a right of survivorship, upon the death of a joint tenant the asset will automatically become owned in its entirety by the surviving joint tenant. This automatic ownership will occur notwithstanding provisions in a Last Will that attempt to give the same property to a different person.

Controversies created by estate property ownership cause major problems for Estate Settlement and often result in Estate Litigation. A recent example of such litigation appeared in the case Herskovitz v. Steinmetz, decided by Justice Richard F. Brown (Supreme Court, New York County) on May 16, 2013 and reported in the New York Law Journal on May 29, 2013. In Herskovitz, a decedent owned a cooperative apartment along with his wife. However, the cooperative stock certificate simply had both their names on the certificate without indicating whether the married parties intended a joint ownership or tenancy in common. Since the decedent’s Last Will left his residuary estate to his daughters, if the cooperative apartment was owned by the decedent as a tenant in common the decedent’s share would have gone to the daughters under his Last Will. However, a joint tenancy with the wife with a right of survivorship would result in the wife automatically owning the apartment upon the decedent’s death and the daughters receiving no interest in the apartment under the Will.

After reviewing the various evidence, which included joint tenancy language in the decedent’s cooperative Proprietary Lease, the Court found that the cooperative apartment was owned by the decedent and his wife as joint tenants with survivorship rights. It should be noted that the facts of this case involved the ownership of a cooperative apartment by a husband and wife where ownership began before a 1996 amendment to New York Estates, Powers and Trusts Law Section 6-2.2. Under paragraph (c) of the amended law, stock of a cooperative apartment issued to a husband and wife creates a tenancy by the entirety unless expressly declared otherwise. A tenancy by the entirety results in the surviving spouse automatically owning the entire asset upon the death of the other spouse.

Therefore, when planning an estate and preparing for the proper disposition of assets a good starting point is to review the title and official or registered ownership of the assets whether they be a bank account, real estate or securities so that the Last Will, Trust and the entire plan accurately provides for the disposition of estate assets.

May 8, 2013

New York Executors Must Be Eligible To Be Appointed by the Court

by Jules M. Haas

The selection or nomination of an Executor or Trustee is one of the most important decisions made by the creator of a Last Will or Trust. No matter how precise and formulated an Estate Plan may be, the selection of a person as Executor who makes poor decisions or fails to follow the creator’s intentions can destroy the entire plan. As discussed in many posts in the New York Probate Lawyer Blog, when a person dies intestate (i.e., without a will), the provisions of the New York Surrogate’s Court Procedure Act (“SCPA”) Section 1001 determines who will be appointed as the Estate Administrator. Therefore, if a person takes the time and effort to avoid the statutory selection process and to put into writing an estate plan, it is imperative to make careful decisions regarding the selection of fiduciaries.

From a personal preference vantage point, there are no set criteria that a person must meet in order to be nominated as an executor or trustee. However, there are a number of important considerations. To begin with, the nominee should be someone the creator has full confidence in as to honestly and integrity. The creator also should feel assured that the nominee understands the creator’s intentions and desires and will do their best to carry out the creator’s plan in a manner that the creator would do. It is the job of the fiduciary in Estate Settlement to collect estate assets, pay estate bills and expenses and distribute the net estate to the beneficiaries. The Executor has a legal obligation to deal fairly and honestly and not to self-deal or take advantage of estate affairs for his own benefit.

New York Estate Lawyers are also aware that in many instances it is a good idea to discuss the possible appointment with the nominee to make certain that the nominee is agreeable to accepting the appointment when needed. If the potential nominee is reluctant to serve, it is better for the creator to find out now and be afforded the chance to make a different choice before a Will or Trust is finalized.

In most instances the choice of a fiduciary is easy since the selection is a spouse or children and the family situation is harmonious. However, where less cordial family relationships are present or persons other than close relatives are being selected, the choices may become more critical since the possibility of Estate Litigation or other Estate disputes require fiduciaries of good and strong character to protect the creator’s plan from attack. It should be recognized that a fiduciary does not need to be experienced or have any business or financial background. As long as the fiduciary has some common sense and the ability to make clear decisions, the fiduciary can hire professionals such as attorneys, accountants and financial advisors to help with technical advice in Estate Administration. Estate Lawyers in New York are generally experienced and can guide the Executor through the complexities of the Probate Process in Surrogate’s Court and estate settlement.

SCPA Section 707 entitled “Eligibility to receive letters” provides the basic statutory qualifications for appointment as a fiduciary. The statute sets forth a set of legal criteria for appointment. A person will be disqualified to be appointed if the person is an infant, or incompetent or a non-domiciliary alien, a felon or did not possess qualifications due to “substance abuse, dishonesty, improvidence, or want of understanding, [or] is otherwise unfit for the execution of the office.” The statute also provides that the court may reject a person who cannot “read or write the English language”. The selection of a fiduciary such as an Executor or Trustee is an important aspect of Estate Planning and Estate and Trust Administration. I have assisted clients over the years in creating their estate plans and have also represented many fiduciaries in estate and trust matters.

April 17, 2013

New York Wills Need to Be Signed According to Statutory Formalities

by Jules M. Haas

A Last Will in New York must be created in accordance with the New York statutes. The Estates, Powers and Trusts Law (“EPTL”) contains numerous provisions concerning the fundamental aspects of and requirements for a valid Will. For instance, EPTL 3-1.1 states that anyone over 18 years old having sound mind and memory can dispose of their personal and real property by Will. Probably the most important provisions regarding Wills are contained in EPTL 3-2.1 which is entitled “Execution and attestation of Wills; formal requirements”. The New York Probate Lawyer Blog has discussed this section of the law in previous posts. EPTL 3-2.1 states the numerous requirements that a Will must meet in order for it to be valid. Among the stated items is that the Will must be signed at the end by the testator, and that there must be at least two attesting witnesses. While the statute contains many more execution requirements, a signed writing with witnesses is fundamental to the validity of a Will in New York.

Estate litigation in the Surrogate’s Courts often occurs when there is a dispute as to whether a Will was properly executed. One of the grounds upon which to Contest a Will is lack of due execution. For example, someone objecting to a Will may claim that it was signed by a testator but not validly witnessed because the witnesses did not see the testator sign the Will or the testator did not acknowledge his signature to the witness. Sometimes there are questions as to whether the Will is genuine and if the document was actually signed by the testator. As can be imagined, there are a vast majority of Will Contest Litigations concerning the validity of Wills.

New York law tends to be very strict regarding the enforcement of the statutory requirements. In many instances, a prospective beneficiary may be without recourse where a testator prepares a Last Will to be signed or tells a beneficiary that a Will leaves a certain bequest and, as it turns out, the testator never signs a Will containing these provisions. Despite, the testator’s possible intentions, in New York, the failure to comply with statutory rules typically prevents the Probate of the purported or drafted Will. In this regard it is somewhat easy to understand that the strict nature of the law is to present unsigned, unwitnessed or other defective papers from being given validly where the testator is no longer alive to confirm that the defective documents actually express his final intentions.

Notwithstanding the specific requirements of the New York Probate Law, there are recent instances in other jurisdictions where unsigned documents have been admitted to probate and allowed to determine the disposition of a decedent’s estate. In a recent post by Cameron Stuart on April 6, 2013 in News.com, it was reported that Irvin Rockman, a former Melbourne, Australia Lord Mayor, attempted to sign a new Will but could not do so due to the seriousness of his illness. Although he died a few days later, the Australian court upheld the validity of the unsigned final Will finding from the evidence that it expressed Rockman’s intent.

Closer to home, a New Jersey Appellate Court approved the probate of an unsigned copy of a paper intended as a Will. In the Estate of Richard D. Erlich, 427 N.J. Super.64 (2012), the Court essentially determined that the unsigned paper was sufficiently formal and expressed the decedent’s intent and was therefore valid.

Despite these recent examples, the vast majority of Wills admitted to Probate are properly prepared, signed and witnessed. New York Estate Lawyers typically counsel their clients regarding their Estate Plan and supervise the preparation and execution of the client’s Last Will and other estate plan documents such as Living Trusts and Advance Directives. When the time comes to Probate a Will, a professionally prepared, signed and witnessed Will can make the Probate Petition Process and Surrogate’s Court filing more efficient and expeditious and less prone to a contest by unhappy family members.

April 10, 2013

New York Wills and Trusts May Be Modified to Reflect the Creator’s Intent

by Jules M. Haas

The New York Probate Lawyer Blog has had many posts discussing the importance of a person’s intent as reflected in their Estate Planning and Advance Directive documents.

A primary purpose of preparing and executing a Last Will, Living Trust, Power of Attorney, Health Care Proxy or Living Will is to provide a clear expression of the manner in which a person wants his affairs to be handled and to select the Executors, Trustees and Agents who will best carry out such desires. As has been discussed, when a person dies without a Last Will or does not otherwise provide for pre-death management of his affairs, the decisions are typically left in the hands of the Courts and New York Law to determine the rightful beneficiaries and administrators. There are occasions, however, when despite expressing ones directions and intent through language in a Will or Trust, the provisions in a person’s Will or Trust fails to fully provide for the implementation of the specific gifts. For example, a Will may bequeath a sum of money to a certain charity. However, a problem would arise if the charity no longer exists or the purposes of which the charity was formed changed. In such a situation, an Executor or Trustee would be faced with a question as to how to dispose of the assets meant for the charity or a specific charitable purpose.

Fortunately, New York State Laws give the Courts, such as the Surrogate’s Court, the authority to modify the Will or Trust to account for a changed circumstance. In the recent case of Matter of Wheaton Galentine Trust, decided by Manhattan Surrogate Nora Anderson on April 8, 2013 and reported in the New York Law Journal on April 12, 2013, a Trust provided for a distribution to St. Vincent’s Hospital and Medical Center for geriatric purposes. Unfortunately, St. Vincent’s had ceased operating in 2010. Utilizing the traditional concept of Cy Pres as set forth in New York Estates, Powers and Trusts Law Section 8-1.1, the Court found that the creator’s intent was satisfied by allowing the St. Vincent’s distribution to be made instead to two different medical institutions performing geriatric services. Thus, the Court was able to modify the trust terms to carry out the creator’s intent when faced with circumstances that prevented the original disposition from being satisfied.

New York Estate Planning Lawyers assist their clients with documents that express the client’s intentions regarding their personal and financial affairs and the disposition of their assets. In situations involving Estate or Trust Settlement, these expressions of intent can be instrumental to assist a Court in helping to accomplish the client’s goal. When there is no plan in place, such as in the case of an Intestate Estate, a person’s desire to benefit particular members of his family or friends or a charity cannot be fulfilled. Over the many years, I have assisted many clients with their planning goals to create an estate plan and advance directives that fully reflect their intentions and desires.

February 13, 2013

New York Estates Include Rights of Adopted Children

by Jules M. Haas

Estate litigation in New York can involve many types of issues. One area of dispute often concerns the rights various individuals may have in a decedent’s Estate or Trust. For example, the New York Probate Lawyer Blog has discussed in previous posts issues concerning the determination of a decedent’s next of kin or distributees. Kinship Hearings may be required by a Court to decide these issues which often relate to relatives such as cousins or more distant relatives whose relationship may be difficult to establish.

Persons interested in an estate may sometimes challenge the status of a surviving spouse. Questions may arise as to whether a marriage or divorce occurred, particularly where such proceedings occur in a foreign country and record keeping may be poor and valid proof of marriage and divorce proceedings may be difficult to obtain.

Litigation in estates may also arise where a person is either adopted by a decedent or where the decedent gave a child up for adoption and surrendered his parental rights. New York Estates, Powers and Trusts Law Section 2-1.3(a) provides that adopted children have the same inheritance rights as natural children. The statute, however, allows a person to avoid this result by expressing “a contrary intention”. Thus, a person who prepares a Last Will or Trust can specifically exclude adopted children, or any other child for that matter, since there is no requirement in New York preventing a person from completely disinheriting a child, natural or otherwise.

In a sort of reverse situation where a parent gives up a child for adoption, New York Domestic Relations Law 117(b) provides, generally, that after an adoption is complete the adoptive child loses his rights of inheritance from his birth parents. Thus, except in certain specific instances, the adoptive child no longer will have any statutory inheritance rights with regard to the family of the biological parents. While these rules may appear on their face to be able to be applied without much confusion, the dynamics of family interaction and monetary considerations often create complicated issues for the Surrogate’s Courts to decide.

An interesting example of the interaction of the New York adoptive rights statutes was recently presented in the Estate of John Svenningsen, which was decided by the New York Appellate Division, Second Department on February 6, 2013. and reported in the New York Law Journal on February 8, 2013. In Svenningsen, the decedent (“John”) and his wife “Christine” adopted a child from China about one year before John died. The couple then commenced proceedings to formalize the adoption in Family Court, Westchester County and these proceedings were finalized after John died. John and Christine had other natural children. The documents that were involved in the Court dispute concerned various Trusts and John’s Last Will. The Will was probated after John died and the adopted daughter (“Emily”) was identified in the Probate Petition by Christine as one of John’s children.

More than 7 years after the adoption and six years after the Will was admitted to probate, Christine surrendered her parental rights to Emily who was then adopted by another couple. When Emily’s new parents discovered by searching court records that John’s estate was valued at more than $250 million dollars, they sought an accounting from John’s estate Executors and Trustees. The fiduciaries, however, refused to provide an accounting and claimed that Emily had lost her rights to inherit under John’s Trusts and Estate pursuant to DRL 117 due to her adoption out of John’s family. Both the Surrogate and the Appellate Court found though that Emily’s right to benefit from John’s Estate and Trusts were not lost by her adoption and that the fiduciaries were required to provide her with an accounting of her share of the Estate and Trust funds.

One interesting aspect of this case is that Emily’s new adoptive parents were able to discover the large amount of funds available in John’s estate by researching the Court records. There are many cases in the Surrogate’s Court concerning Probate, Administration and Accounting proceedings where I have located valuable information to benefit a client by searching the Court records.

February 6, 2013

New York Joint Assets May Have to Pay A Share of Estate Taxes

by Jules M. Haas

The New York Estate Settlement process may require that an Estate Tax Return be filed for a decedent’s estate. Not all estates are required to file returns or pay an estate tax. In New York, the estate value threshold for having to file the return is $1,000,000. The Federal requirement is equivalent to the exclusion amount which for 2013 is a gross value of $5,250,000.

Even in an estate that is required to file a return, no estate tax may be due on account of various deductions such as the marital or charitable deduction or because of debts or liens such as mortgages or other claims. The gross estate value of an estate is comprised of all of the decedent’s assets that are considered under the tax laws to be includable for estate tax purposes. These items include assets that were owned by the decedent in his name alone at death such as bank accounts, brokerage accounts, real estate, etc. The gross estate also includes assets owned by the decedent that were held jointly with a right of survivorship, and other items where there is a named beneficiary such as life insurance, retirement accounts (i.e., IRA’s or 401K’s) and Totten Trusts.

The New York Probate Lawyer Blog has previously discussed that assets owned in a decedent’s own name typically are administered by an Executor or Administrator as part of the administration estate. Property that has named beneficiaries or joint owners is transferred automatically to such beneficiary/joint owner upon the decedent’s death and is not subject to estate administration.

Regardless of the nature of the assets, where an estate is subject to estate tax, the tax must be paid due to the inclusion of such item for tax purposes. The issue that is always presented is what source is responsible for the payment of the estate tax – is it the decedent’s administration estate or is payment the responsibility of the beneficiary or joint owner who received the property. Of course, like many answers in the legal world, the response is “it depends.”

In the first instance, the tax laws generally require that the estate fiduciary (i.e. Executor or Administrator) is responsible for paying the tax.

It is a common practice that a provision in a decedent’s Last Will provides that all of the decedent’s estate taxes be paid from the decedent’s administration estate which is the property owned by the decedent in his own name and passing under the Will. Such a provision would exempt from the payment of the tax any beneficiary of property passing outside of the Will such as insurance or jointly held assets. This result may not be fair to the persons who are beneficiaries under the Will since they are required to pay the estate taxes allocable to the assets passing to the other outside beneficiaries.

In order to avoid an unintended burden of estate taxes being placed on unsuspecting beneficiaries, a New York Estate Attorney will examine a client’s entire portfolio of assets and discuss the tax issues with a client so that estate taxes can be properly allocated.

The basic law in New York is that each asset is to share its allocable portion of estate taxes. These principals are set forth in New York Estates, Powers and Trusts Law Section 2-1.8 entitled “Apportionment of Federal and State Estate or Other Death Taxes; Fiduciary to Collect Taxes from Property Taxed and Transferees Thereof“. Therefore, if there is no specific direction in a Last Will or other instrument that changes this allocation, all of the outside beneficiaries must contribute their allocable share of estate taxes. EPTL Section 2-1.8 even allows the Surrogate to direct such persons to pay their share of the tax.

Estate Administration can be a very complex process. Calculating the amount of estate taxes that may be payable and determining the persons that are ultimately responsible for such payment adds even more responsibility to the job which each Executor and Trustee is required to perform. Since Estate fiduciaries are responsible for the proper payment of estate tax it is important that they obtain guidance from Estate Lawyers and tax professionals so that the interests of the estate and all beneficiaries are protected.

January 30, 2013

Estate Planning in New York Should Always be a Top Consideration

by Jules M. Haas

There are legions of articles and information postings explaining the benefits of having an Estate Plan. New York Estate Planning, as well as planning in all other states, requires that an individual take the time and consideration to develop the precise manner in which assets, financial affairs and personal matters can be handled in the event of death or incapacity.

However, despite all of the pronouncements and guidance that is offered, New York Estate Lawyers know that a lack of estate planning or an ineffective plan is often the rule rather than the exception. In a recent post by Russ Rankin at churchexecutive.com entitled “Survey: Most SBC pastors not prepared to die“, it was reported that almost 40 percent of pastors in the Southern Baptist Convention have no estate planning documents. It appears that this lack of planning is remarkable since members of the clergy would seemingly interact with parishioners on a day to day basis who face the personal hardships of having to deal with the death and incapacity of family members and friends.

The New York Probate Lawyer Blog has discussed Estate Planning Documents in many posts. These documents include a Last Will, Health Care Proxy, Living Will, General Power of Attorney and Living Trust. When creating an estate plan, an individual should consult with a legal advisor to determine which documents are most suited to his circumstances. Specific provisions and beneficiary designations in a Last Will or Trust, as well as other documents, may need to be crafted to deal with particular circumstances and to insure that a person’s intentions are carried out without confusion or delay.

Interestingly, in Mr. Rankin’s article, the author notes that over half of the pastors believed that when a person dies intestate (without a Will), the decedent’s family determines what happens to the deceased person’s assets. The fact is in New York, like most states, when a person dies intestate New York law determines the persons who inherit the estate. These persons are called distributees (i.e., next of kin) and the order of priority of inheritance is set out in New York Estates, Powers and Trusts Law Section 4-1.1. Also, typically an Administrator will be appointed from this group of distributees after a petition is filed with the Surrogate’s Court in New York.

Since it is always best to create an estate plan, which includes naming one’s Executors and Trustees rather than leaving their selection to an artificial state law, steps should be taken to put a plan in place and to update the plan periodically.

January 23, 2013

A New York Estate Plan Must Consider Assets Held in a Totten Trust

by Jules M. Haas

Estate Planning in New York requires a review and understanding of all of a person’s assets and property interests. The New York Probate Lawyer Blog has previously discussed that a Last Will typically controls or directs the disposition of assets that are owned or held in a decedent’s name alone.

Other assets may pass from a decedent to a beneficiary by operation of law. For example, jointly owned property such as a bank account or real estate is automatically transferred to the surviving joint owner upon death. Similarly, named beneficiaries of life insurance and pension or retirement funds directly receive these assets when a decedent dies. Typically, a Last Will does not control the disposition of these funds without very explicit directions. Similar principals apply to a bank account known as a “Totten Trust”. Such bank accounts are usually created by a decedent and are titled in the name of the decedent “ITF” with the name of the beneficiary appearing thereafter. During his lifetime, a decedent would be completely free to add or subtract funds to the account and the “ITF” beneficiary would have no rights to any of the funds. However, upon the death of the account owner, all of the funds pass automatically to the “ITF” beneficiary. New York Estates, Powers and Trusts Law Section 7-5.2 sets forth many of the rules regarding these types of accounts.

New York Estate Lawyers are aware that an estate plan and creating a Last Will must take into consideration these accounts. The provisions of the Will may provide for property dispositions to persons other than those named as a beneficiary of a Totten Trust. Such an estate plan may not reflect a decedent’s actual intent and may also lead to Surrogate’s Court Litigation.

An example of the potential for contests regarding estate settlement and Totten Trusts was recently provided in a case decided by Manhattan Surrogate Nora Anderson on January 10, 2013 and reported in the New York Law Journal on January 28, 2013. In Matter of Wess, the decedent died leaving a Totten Trust in the name of her former lover in a sum of over $400,000. The Executor of the decedent’s Will claimed that the bank account containing these funds should not be found to be a Totten Trust passing directly to the friend. Instead, the Executor claimed that the bank funds should pass to the estate under the Will.

Based upon a review of the bank records, 1099 Forms, testimony of bank personnel and other evidence, the Court determined that there was a valid Totten Trust. Thus, the bank funds passed directly to the decedent’s friend and not pursuant to the Will provisions.

The Wess case demonstrates that Estate Planning in New York must include a careful review of how assets are owned. If Will provisions conflict with beneficiary designations on assets such as bank accounts, it is essential that a person understand where his assets will go upon death so that his intent is carried out. Moreover, if the intention is that a Totten Trust beneficiary receives an account and that a Will does not control this asset, it would be advantageous to confirm that the bank account name and bank records are absolutely clear as to this intention. In Wess, although the Totten Trust was upheld, the bank had lost the signature cards and destroyed other old papers associated with the original creation of the Totten Trust account.

January 16, 2013

New York Estate Assets in the Age of Facebook

by Jules M. Haas

The New York Estate Settlement process is often an overwhelming challenge to family members and friends who are appointed as Executors or Administrators of a decedent’s estate. Putting aside the sometimes complex task of Probating a Will or seeking Letters of Administration in an Intestate Estate, the newly appointed fiduciary is faced with the duties of marshaling or collecting assets, paying debts and expenses and filing estate and income taxes related to the decedent.

New York Estate Lawyers who represent fiduciaries assist their client with many of these items. However, dealing with assets, debts, claims and taxes, particularly where a decedent’s personal affairs were kept private during a decedent’s lifetime, requires time consuming research and attention to the details provided in the decedent’s records and papers.

In the Facebook and Web centered age, investigating a person’s lifetime affairs is even more difficult due to on-line banking, social media contacts, and web-based information in the “cloud”, all of which is accessed by a plethora of passwords and user ID’s. Thus, rummaging through a decedent’s paper bank and brokerage statements and incoming mail may not provide a full insight into his affairs which may, in fact, be paperless. Just accessing an e-mail account may be impossible.

In this regard, the authority of an Executor or Administrator may be thwarted by privacy rules and restrictions that are imposed on the users of these web/social media accounts. For example, the state of Virginia is now considering legislation that would allow the state’s probate laws to apply to so-called “digital assets”. As reported by Tracy Sears in a post on January 9, 2013 in wtvr.com, this legislation was prompted after the suicide death of a 15 year-old high school student. When the student’s parents attempted to access his Facebook account to try and discover reasons for his untimely death, Facebook refused the family access due to its privacy policies. Unfortunately, there was no state or federal law that gave an estate a right to override these company policies.

It appears that New Hampshire is also considering this type of legislation that would allow an Executor to have control over a decedent’s social media accounts.

An estate fiduciary is entrusted with the obligation of Administrating an Estate and providing finality to a decedent’s affairs so that the estate beneficiaries can ultimately receive their share of estate assets. It is, indeed, ironic that the web/social media avenues that can seemingly provide efficiency and productivity to a person during life are now an impediment to the settlement of that person’s affairs after death.

Providing the Estate Planning to avoid these issues of non-access to account information is always a good practice. Along with estate planning papers such as a Last Will, Health Care Proxy, Living Will, and Power of Attorney, a person should keep a clear and up-to-date record of user ID and password information. A trusted family member or friend should know where to locate this valuable information. Additionally, there has been a new trend towards preparing a “Digital Will”. As reported in an article by Claire Connelly at foxnews.com on August 30, 2012 entitled “Your digital Will: How to share your data after death“, specialized on-line sites allow you to store your user information and designate the beneficiaries who are to receive this information after your death.

January 2, 2013

New York Will Witnesses May Not Receive a Beneficial Disposition in the Will

by Jules M. Haas

The execution or signing of a New York Last Will is subject to very strict statutory requirements. While the Will signing ceremony may seem somewhat formal and old-fashioned the requirements of the statutes must be adhered to for the Will to be admitted to probate or validated.

As previously reviewed in earlier posts in the New York Probate Lawyer Blog, Estates, Powers and Trusts Law (EPTL) Section 3-2.1 provides the “formal requirements” for the “Execution and attestation of wills”. A summary of the requirements includes the following:

(i) The Will must be signed at the end.
(ii) No effect is given to any matter which is after the signature or added after the
Will is executed.
(iii) The Will should be signed in the presence of the attesting witnesses.
(iv) The testator should declare to the witnesses that the paper is his Will.
(v) There should be at least two (2) witnesses to the Will.

Sometimes obtaining the mandatory two (2) witnesses is not an easy task. If the Will is signed in an attorney’s office it is typically easy for the supervising attorney to obtain independent attorneys or office staff to act as witnesses. However, sometimes due to inconvenience or a testator’s inability to travel, the Will execution ceremony is performed in a residence or other location. In such situations, controlling the execution ceremony so that it complies with the statutory requirements is more difficult.

Attention is called also to EPTL Section 3-3.2 entitled “Competence of attesting witness who is beneficiary; application to nuncupative Will.” Essentially, this statute provides, in part, that where an attesting witness receives a benefit under the Will, such disposition is to be deemed void unless there are at least two other witnesses who do not receive a beneficial disposition. Thus, if the benefiting witness’s testimony is needed to validate the Will, the disposition is voided and lost.

A recent case decided by Surrogate John M. Czygier (Suffolk County Surrogate’s Court) on December 14, 2012 and reported in the NYLJ on December 31, 2012 cited as “Probate Proceeding 2012-337”, is an example of a problem presented by a witness having a beneficial interest in a Will. In this case, the Will had a provision whereby a bequest of $100,000 was made to the “Peconic Landing Employees Appreciation Fund.” All three attesting witnesses were employees of Peconic Landing and the Court found that they would benefit from the bequest to the Fund. Therefore, the Surrogate determined that the witnesses received a “beneficial disposition’ and voided the $100,000 bequest to the Fund.

As can be seen from the above decision it is important that the preparation and execution of a Last Will be done with an eye towards potential problems in probating the Will. New York Estates Lawyers typically are familiar with the statutory requirements for Will executions and probate and work closely with their clients to achieve their estate planning goals.