Last Will

August 12, 2011

New York Executors Have Fiduciary Responsibilities and Are Subject to Court Review

The New York estate settlement process involves many different requirements and responsibilities. An Executor is the person or institution appointed by the Surrogate’s Court to administer or carry out the terms or provisions in a Last Will. The responsibilities of a person named as Executor begins immediately after the death of the decedent.

An Executor’s first duty is to file the Will with the Court and prepare a petition for probate. The Court must officially appoint the Executor before he or she has authority to handle estate affairs. While information provided in the probate petition is the same whether filed in Nassau, Suffolk or Queens counties, it may not always be easy to provide the required data. Among the items needed to be completed is a list of the names and addresses of all of the decedent’s distributees (i.e., next of kin). While this may be a simple task where a decedent is survived by a spouse and/or children, the information may not be so easy to provide where the decedent’s closest relatives are cousins and spread out throughout many different countries.

In a number of estates where I represented the Executor, distributees numbered in the twenties and many lived overseas. Also, particular problems arise when the decedent was orphaned or estranged from his or her family at a young age.

The named Executor is often faced with kinship issues such as these. Also, the potential for a Will Contest always exists. Thus, the Executor’s obligations can be quite extensive and complex even before the actual administration of the estate begins.

Once the Executor is actually appointed by the Court, it is his or her job to collect the decedent’s assets; pay bills, taxes and claims; and distribute the estate assets to the estate beneficiaries. In some instances, the Will may name more than one person as Executor and disputes may arise between the Executors. In a recent case decided by Surrogate Edward W. McCarty on June 2, 2011 and reported in the New York Law Journal on June 20, 2011, one of the Executors interfered with the sale of the decedent’s
residence. This conduct prompted the other Executor to commence a Court proceeding pursuant to Surrogate’s Court Procedure Action section 719 for removal of the Executor.

Even routine matters may pose extraordinary problems. As noted above, one duty of an Executor as a fiduciary is to determine and satisfy a decedent’s debts or the claims against the estate. An Executor who improperly performs this task may end up personally responsible for payment. However, determining the extent and validity of a claim or debt can be difficult. As reported by Letitia Stein on July 27, 2011 in the St. Petersburg Times, a lawsuit was filed against the estate of a woman by a hospital which claimed the deceased woman incurred over 9 million dollars in medical expenses prior to her death.

Determining and paying estate taxes or estate income taxes is also a complex matter. Just this past year Executors and other fiduciaries were required to examine the new tax laws very closely to determine whether an option concerning the cost basis of estate assets or utilizing an increased estate tax exemption would be most beneficial.

Distributing estate assets to beneficiaries can also have many problems. Quite often, beneficiaries are minors and payment must be made to a Trust or to a Guardian appointed by the Court. Also, beneficiaries may not agree with the calculations utilized in computing their shares or may object to some action taken or not taken by the Executor. A contested accounting proceeding may result from these disputes. Additionally, a beneficiary may die before receiving his or her distribution and a proper estate fiduciary must be appointed for the beneficiary’s estate before his or her share can be paid out.

The many responsibilities and issues faced by Executors and other estate fiduciaries in administering an estate are endless. Having an experienced estate settlement attorney is important to advise the fiduciary concerning these matters in estate administration

August 9, 2011

Estate Litigation Can Complicate and Delay Settlement of Decedent’s Estates

by Jules M. Haas

Attorneys familiar with probating a Last Will throughout New York, such as in the Bronx and Brooklyn, are often confronted with issues that result in Court litigation. Many of these controversies involve family disputes and disagreements that have origins many years before the death of the decedent. Once a person dies, opportunities are presented to activate long held disagreements and family disharmony.

It is not uncommon for a testator to prepare a Will and disinherit a child or other close relative. New York law does not require that a person leave anything to a child. However, as previously discussed in the New York Probate Lawyer Blog, Estates, Powers and Trusts Law section 5-1-1-A requires that a portion of an estate be left to a spouse.

After being disinherited, a disgruntled child can use the requirements of the probate process to Contest a Will. In his or her view, the testator’s Will should be deemed invalid because lack of capacity or undue influence was the cause of the disinheritance and not the personal disharmony that existed for many years. Since the decedent is no longer around to express his or her desires, it is now up to the Court and the litigants to sort out the family dynamics or dysfunctional relationships.

Will contests in the New York Surrogate’s Court, like elsewhere, can be time consuming and costly. Examinations of attesting witnesses, review of the Will execution ceremony and discovery of information reflecting upon the decedent’s capacity can be an excruciating experience for the family members involved. A recent article by Mary Ann Spato appearing in NJ.com on July 26, 2011 recounted the story of author Belva Plain who died last October. It appears that for almost 20 years prior to her death the decedent had fully supported her son, John, based upon an agreement that John would not contact members of the family or claim any part of her estate. Notwithstanding the agreement, after Belva died, John sought to void the agreement and claimed that his mother had been unduly influenced by his sisters. The Court ultimately ruled against John finding that he had no claim against his mother’s estate.

A similar pattern was seen with regard to the estate of the late entertainer James Brown. As reported by Matt Birbeck on July 20, 2011 in RollingStone.com, Brown, who had an estate valued at about $100 million dollars, died in 2006. He left almost his entire estate to a Trust to benefit underpriviledged children in South Carolina and Georgia. However, after a Will contest by his seven children and fourth wife, the estate was split between the family and the Trust. Nevertheless, as reported, none of the estate money has yet to be paid out and there is still an ongoing dispute concerning Brown’s final place of burial.

Another area that has been a source of many Court battles concerns the transfer of a person’s assets prior to their death. Such transfers can destroy even the best estate plan and leave an estate without any assets to be paid to the beneficiaries named in a Last Will. The creation of joint ownership or designating beneficiaries on bank accounts causes these assets to pass to a joint owner or beneficiary automatically upon death, thus insulating them from the control of an estate fiduciary such as an Executor or Administrator. The provisions of a Will or the intestate statutes are essentially avoided. As a Nassau estate attorney, I have seen many instances where children, friends and caretakers rearrange a person’s assets prior to death by having their names added as co-owners or beneficiaries. After the decedent passes on, the Will beneficiaries and estate Executor or Administrator are faced with the arduous task of engaging in litigation to discover and recover the decedent’s assets. Questions of undue influence and intent surround these proceedings and the decedent cannot express his or her actual desires.

July 19, 2011

Queens and Brooklyn Will and Estate Planning Is Necessary

by Jules M. Haas

A recent survey posted on The Wall Street Journal’s MarketWatch website found that while Americans believe that estate planning and wills are important, they do not have the documents in place for themselves. Residents of Queens and Brooklyn, particularly those owning homes, should not leave the disposition of their assets and estate settlement to be determined by inheritance statutes.

For New York Estate Planning Lawyers, this seems to be an accurate survey. Most Americans would be able to tell you what a will is and that it is necessary, but many also would probably admit they haven’t made any plans for what will happen to their assets when they die. Because most people consider death a far-off event, they don’t plan today.And that can be dangerous. New York wills and estate planning is critical because not only does it save your relatives time, money and effort when you die, it ensures that the wealth you spent years accruing doesn’t get swept away in taxes or go to someone other than your desired beneficiary.

According to the survey, which was conducted by EZLaw, 60 percent of Americans believe that all adults should have a will or estate planning documents. But only 44 percent report that they themselves have these documents in place. I have helped many clients with Brooklyn probate matters as well as Queens estate administration. Proper planning is essential to expediting these proceedings.

In contrast to those numbers, 36 percent of Americans with minor children do not believe that wills or estate plans are among the most important documents to have on hand. Rather, adults with minor children in the household rank birth certificates (76 percent), and titles/deeds for property and vehicles (70 percent) as the most important. While parents with minors understand that a court will decide the child’s legal guardian if they die before the child turns 18 and there is no will, only 39 percent have any documents in place for such an event.

Reasons given for not making a will or estate plan a priority vary widely. According to the survey, 37 percent of Americans cite a current focus on “essentials,” such as paying bills and buying groceries, as the top reason they don’t have any estate planning documents. Other reasons cited by survey respondents include:

Not necessary (18 percent).

Too complicated to deal with right now (16 percent).

Too expensive (14 percent).

Belief that their spouse and/or children will automatically receive any assets that they have (13 percent).

Too time consumng (6 percent).

Gender and age also play a factor in the findings, the survey reported. For most Americans, finding money to retire and preserving their health are main priorities rather than protecting their financial assets. Women are more concerned with their weight (47 percent) than protecting their assets (43 percent).

Most disturbing is that parents with minor children haven’t made plans to care for their children in the event of their death. While New York Intestate Laws would dictate that the children receive the assets, they wouldn’t necessarily determine where the child would live. This could spark contentious debate among surviving family members and could be avoided by having documents prepared and filed away. Additionally, more flexibility can be provided if a trust is established for a child rather than relying on the often restrictive Court appointed guardianship rules.

It doesn’t take much to prepare a will and other directives in the event you die. New York Estate and Will Lawyers have done this for many families and individuals and are prepared to help you, too.

June 14, 2011

Doomsday Profit Gets Inheritance In Queens Woman’s Will

by Jules M. Haas

CNN recently reported about a woman whose aunt gave nearly her entire estate of $300,000 to Family Radio, the non-profit California station that broadcast unsuccessful predictions about the end of the world.

Contested wills in New York probate court can be difficult because they require specific requirements other than a family member feeling slighted by a loved one who passed away. New York Estate and Will Lawyers have handled an untold number of these cases and are well-versed in this area of law. Whether it’s contesting a will or planning an estate, it is a good idea to seek professional guidance.Family Radio’s owner, Harold Camping, has grown to celebrity status in recent months with his predictions that May 21 would mark the return to Earth of Jesus Christ, which would lead to a rapture of believers followed by five months of hell on Earth by non-believers before the world ends. His followers traveled across the country in RVs with large signs plastered on the sides, picketed busy intersections and even purchased billboards in foreign countries proclaiming their predictions. Camping has now said he miscalculated the date, which he now believes is October 21.

As CNN also reported, the non-profit organization is operated largely by donations and brought in $80 million between 2005 and 2009, including $18 million in 2009 alone.

Apparently, $300,000 of these donations came from a Queens woman who died in May 2010. As news of the doomsday prediction made news leading up to May 21, a relative of the woman said she and her sister were each left only $25,000 from her aunt’s estate and the rest went to Family Radio.

While she believes her aunt was comforted by the radio’s discussions about heavenly treasures, she didn’t know it was the same group that was working people into a frenzy about the end of the world. Had her aunt lived to see the prediction fail, the aunt may have had second thoughts and might not have left her money to the organization. While the woman said she wasn’t in need of the money, other family members could have benefited from a larger bequest.

Sometimes family members can successfully challenge whether the loved one had the mental capacity to make the decisions they made in preparing their end-of-life documents. It’s also sometimes possible that executors and others involved in helping a person plan their will can unjustly influence their decisions.

These issues require court action and should only be tackled with an attorney who has the experience necessary to protect your inheritance and the integrity of a loved one’s estate.

June 9, 2011

New York Estate Planning and Probate Should Avoid Family Disputes

by Jules M. Haas

The New York Probate Lawyer Blog has talked about many different situations where disputes and competing interests among family members can arise. For example, when a person prepares his or her estate plan many decisions must be made regarding the details and provisions in documents such as a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. The selection of beneficiaries, executors, trustees and agents are usually made within the context of family dynamics where the personal preferences of the person creating the documents is mixed with the differing interests and sometimes long-standing antagonism existing between intended beneficiaries or appointees.

In a related situation, a person may become incapacitated due to an accident or medical condition such as dementia or heart ailment. It may be necessary to seek the assistance of the Court by applying for the appointment of an Article 81 Guardian. In many of these cases, particularly where the Alleged Incapacitated Person (“AIP”) was ill prior to the Court application, various family members may have been involved with the AIP’s property management or personal affairs prior to Court intervention. Other family members may believe that decisions previously made by the involved parties were improper. There also may be contested Guardianship proceedings regarding whether the appointment of a Guardian is appropriate or which family member is the proper person to be appointed. Family disputes regarding a loved one’s long term care, property management and other end of life decisions are not uncommon.

For example, the recent death of T.V. star Gary Coleman highlighted some of these problems. Following his death, questions were raised as to whether Gary Coleman’s ex-wife had the authority to remove him from life support and apparently a dispute developed between the actor’s wife and his parents regarding his burial.

Many disputes among family members arise following a person’s death. Will contests and lawsuits regarding improper transfer of assets can fill the Court dockets and make headlines. Just recently, it was reported that a number of lawsuits were filed in a Salem, Massachusetts case where a widow claimed that the decedent’s sons, with the assistance of a retired judge and another lawyer, cheated her out of her inheritance. Many of the postings in the New York Probate Lawyer Blog have discussed similar legal battles.

Avoiding family disputes before and after an individual’s death should be of paramount concern. While all controversies cannot be prevented, there are a number of steps that can be taken to reduce the likelihood of family warfare. A few are listed below.

First and foremost, proper estate planning, including advance directives such as a health care proxy, should be prepared by a New York estate planning attorney. It is important to have a complete understanding of the assets that are to be transferred and the terms of the Last Will, Trust papers and other documents that are to be signed.

I have helped many clients prepare estate plans and directives to fully reflect their wishes and protect their beneficiaries.

The selection of executors, trustees and agents is important. These appointees should be individuals you can trust and who can make appropriate decisions to carry out your plan. It is a good practice to discuss a person’s appointment with them prior to naming them in a document so that it can be determined whether they are agreeable to being appointed and possibly advise them as to the terms of the appointment.

Lastly, continue to review and update an estate plan. Assets, family circumstances and planning goals tend to change over time. All planning documents should be periodically reviewed and updated to ensure that a person’s estate plan and directives reflect current situations. Many problems arise where documents that are decades old need to be updated and no longer reflect present realities.

May 17, 2011

New York Kinship Problems Arise When A Decedent Does Not Have A Last Will and Testament

by Jules M. Haas

The New York Probate Lawyer Blog has discussed on a number of occasions the many problems created when a person dies without a Last Will and Testament. One of the major issues faced in estate settlement and estate administration in such cases is determining the identity of the decedent’s distributees or next of kin. This determination is essential because the distributees are the individuals designated by law that will inherit the estate assets. As previously referred to in blog posts, New York Estates, Powers and Trusts Law section 4-1.1 provides a list of persons who have priority of inheritance.

It is quite common that a kinship hearing is required to determine the identity of distributees. Proof of kinship can be time-consuming, expensive and difficult. A recent example of the complexities of kinship determination was displayed in Matter of the Estate of Esther Onetha Springer, decided by Kings County Surrogate Margarita Lopez Torres on April 8, 2011. Esther Springer died in 1988 owning a one-half interest in her residence. Based upon investigation followed by testimony and other proof at Court hearings, it appeared that Esther had two children. One of those children, Clyde, had moved to California and died in 2001. Therefore, a determination needed to be made as to Clyde’s distributees. According to the Court decision, Clyde “had fathered a number of children from a number of relationships, marital and non-marital. . . .” It appears that Clyde had eight children and the New York Surrogate determined that it was necessary to use California law to establish Clyde’s distributees. The Court was ultimately able to determine kinship.

I have assisted clients throughout New York including Manhattan and Queens in kinship and intestate administration matters. As can be seen from the Esther decision, it is essential to prepare appropriate estate planning documents such as a Living Trust and Last Will and Testament to avoid the uncertainties of intestate proceedings. Additionally, in the event a person dies without proper planning, a good New York Trust and Estate attorney is important to help protect the rights of estate beneficiaries and to properly administer the decedent’s estate.

May 12, 2011

Large Inheritances Create the Need for Sound Fiscal Planning and Execution in New York

by Jules M. Haas

Imagine the emotion of having a parent or relative die and then deal with the shock of being left a large sum of money as an inheritance. Many would not consider it a burden. However, without the proper plan to handle that kind of change in your life, you could be left mismanaging the money, fighting with siblings and wasting away money your family worked hard to save.

That’s why as previously discussed on New York Probate Lawyer Blog, it is imperative you select a proper executor or trustee in dealing with estate planning. A well-qualified New York Probate Attorney can help plan and manage an estate, including life insurance, stock options and real estate.For example, consider the trouble this Illinois woman had when her mother died of cancer in June 2007. She and her four siblings inherited their parents’ $1 million house, according to CNN Money.

While all siblings agreed to sell the house, it became a hassle because some believed the house was overpriced and others thought it was priced correctly. Eventually, the house sold, though for 9 percent less than their initial estimate. But in the meantime, the siblings had to pay utility bills, landscaping costs and deal with a house that was nearby to no one.

AS CNN Money points out, there are challenges to being a beneficiary. While it is comforting to be remembered and while there is likely a material benefit, there are challenges, including tax laws, family drama and complexity surrounding business dealings.

New York probate law requires court intervention, affidavits, petitions and notice to family members, all of which can be daunting for someone to do on their own. And, if done incorrectly, it can become an ongoing financial burden that relatives never intended it to be.

When dealing with an inheritance or a will, consider how an experienced New York City probate attorney can assist you in either planning your estate or executing the will of a loved one:

Planning your trusts and estates: You should start by taking inventory of your assets and deciding who should execute your will and to whom you want to leave your assets. An attorney is best able to assist you in making and executing a plan.
Choosing an executor: A New York State executor may be appointed when someone leaves assets after death. If you are chosen as an executor, you may need sound legal advice on how best to execute the will.
Dealing with contested wills: In New York, wills can be contested in court. These are often done by heirs who were left little in a will from a relative. There must be a valid legal ground for objecting to a will, but the process can be emotionally and financially exhausting. Consult a probate lawyer who can work to minimize the damage.

May 5, 2011

New York Estate Planning Has Benefits and Pitfalls From Life Insurance

by Jules M. Haas

New York estate planning requires the consideration of many different facts and circumstances. Paramount in importance is a person’s planning desires which require identifying the beneficiaries, such as relatives, friends and charities, who are to share in the plan. Also, the various types of assets such as real estate , securities, retirement funds and bank accounts must be examined. One such asset that is very popular and helpful in planning is life insurance.

Life insurance is a contract between the owner or person who buys the policy and the insurance company. The contract or policy obligates the company to pay a certain amount of money upon the occurrence of a certain event such as the death of the person who is insured. Depending upon factors such as age, health and type of policy, the ultimate insurance pay-out may be many times greater than the premiums paid to purchase the insurance. Therefore, when contemplating the use of life insurance as part of an estate plan, an individual should consult with experienced professionals such as a New York estate planning attorney and a qualified insurance agent or financial planner.

In addition to determining the appropriate type and amount of insurance to purchase, close attention should be given to the naming of primary and alternate beneficiaries. Designated beneficiaries of insurance receive these benefits outside of a probate estate. Thus, the provisions of a Last Will must be coordinated with the naming of the insurance beneficiaries to preserve the intentions of the estate plan pay-out.

Due diligence in investigating the bona-fides of the insurance company is also advisable. In a recent post by Philip Moeller on May 2, 2011 in The Best Life, it was reported that many insurance company practices are being investigated relating to life insurance policies. The article noted an audit by the California State controller that showed “an industry-wide practice of companies failing to pay death benefits to the beneficiaries of life insurance policies.”

The article also provided a number of suggestions that one should follow regarding their life insurance policies, which are summarized as follows: (i) clearly identify your beneficiaries; (ii) maintain good records of the insurance; (iii) advise your beneficiary concerning the insurance; and (iv) use the assistance of an attorney or financial planner who can assist with the collection of insurance proceeds.

May 2, 2011

Selecting New York Beneficiaries and Executors or Trustees in Important in Estate Planning

by Jules M. Haas

New York Estate Planning requires the consideration of many different topics. To begin with, knowing the nature and value of one’s assets is imperative. Some assets such as joint bank accounts will pass to the joint owner by operation of law. Assets held in the name of the decedent or creator of a trust may be available for distribution pursuant to the terms of the Will or Trust instrument.

Great consideration should also be given to the beneficiaries who are to benefit from the estate plan. Not only is the identity of the primary beneficiaries important, the allocation of shares among the beneficiaries, as well as the selection of alternate beneficiaries, should be reviewed.

The New York Probate Lawyer Blog has previously discussed that a spouse cannot be disinherited and is entitled to obtain a share of the other spouse’s estate. However, there is no prohibition in New York law from disinheriting any other family member, such as children. It was recently reported in Entertainment News that film star Jackie Chan intends to disinherit his son and donate his assets to charity.

Another consideration is the selection of a fiduciary such as an Executor or Trustee. The selection of a fiduciary involves placing long-term confidence in someone who is expected to carry out a person’s wishes and intentions. Alternative or successor fiduciaries should also be designated. The selection of fiduciaries who are not trustworthy can ruin the best estate plan. As recently reported by Paul Lamoureux in The Docket on March 28, 2011, trust funds donated by founding father John Adams were negligently managed by the city of Quincy, Massachusetts.

April 27, 2011

A New York Will Contest May be Based Upon The Duress Of The Testator

by Jules M. Haas

The New York probate of a Last Will essentially requires the determination by the Surrogate’s Court that the Will is a valid document to provide for the transfer of the decedent’s estate. When a Will is admitted to probate, the Will becomes effective and estate assets are distributed as specified by the Will provisions.

The New York Probate Lawyer Blog has discussed that the decedent’s distributees or next of kin have the right to object to the probate of the Will. The common grounds relied upon in contests are: (i) lack of proper execution of the Will; (ii) lack of testamentary capacity; (iii) undue influence; and (iv) fraud. Each of these grounds has its particular requirements of proof.

In a recent case concerning the Estate of Mildred Rosasco, decided by Manhattan Surrogate Kristin Booth Glen on April 5, 2011 and reported in the New York Law Journal on April 14, 2011, the Court recognized that an additional ground for a Will contest can be based upon “duress”. Duress differs from undue influence in that duress involves more of a threat or performance of a wrongful act that coerced the testator. In Rosasco the Court found that the basis for a finding of duress was present due primarily to physical violence that the estate beneficiary had displayed and the possible fear by the decedent that such violence would re-occur if she changed her Will. Therefore, the Court allowed the case to move forward toward a trial.

Instances of Will contests based upon more typical acts of undue influence are frequently presented to the Court. I have represented clients in these New York City probate matters in counties such as Brooklyn and the Bronx. In another recent case, Brooklyn Surrogate Diane A. Johnson allowed the proceedings to move toward trial where a 92-year old decedent had left his substantial estate to two administrators of the assisted living facility where he had lived during the final years of his life. The case of Estate of Ralph Besdansky, decided on April 12, 2011 and reported in the New York Law Journal on April 15, 2011, seems to present a more classic example of a Will procured through undue influence and abuse of a confidential relationship.