Trusts and Estates

March 12, 2021

What is the Surrogate’s Court in New York?

Any discussion regarding estates and trusts in New York invariably involves the Surrogate’s Court. To most individuals not involved with the settlement of a decedent’s estate or other Court matters, proceedings in a Court named Surrogate’s Court may seem mysterious and sometimes ominous. However, this Court and the nature of the matters it handles makes it one of the most people-oriented forums in the judicial system. After all, most of the proceedings concern the affairs of decedents which affect the humanity at some level of all the participants.

The history of the Court dates back to colonial times. According to an article written by Dennis Wiley entitled “What’s in a Name? That Which We Call Surrogate’s Court” which appeared in the New York State Bar Association Journal July/August 2016 publication, the title of Surrogate was first used in New York in 1702. According to the article, New York and New Jersey are the only two systems of probate in the United States which use this term. Most other places refer to probate courts.

The New York Probate Lawyer Blog refers to the Surrogate’s Court all the time. The judge in the Surrogate’s Court is known as the Surrogate. The primary laws that control the functioning of the Court are contained in the Surrogate’s Court Procedure Act or SCPA. There is an official website for the New York Court System at www.nycourts.gov . This site contains a lot of information regarding the New York Surrogate’s Court. It is pointed out that each county in the state has such a court which handles cases regarding decedents. In addition, the site is a valuable resource since it lists some of the numerous types of cases which come before the Court. These include the following:

December 18, 2019

Interesting Facts Concerning the Appointment of a Preliminary Executor

by Jules M. Haas

When a person dies and leaves a Last Will and Testament, it is necessary to commence a Probate Proceeding to validate the Will. Once the proceeding is complete, the Court admits the document to probate and letters testamentary are issued to the petitioner. The person who files the petition with the Court for probate is typically the individual nominated in the Will.

Probating a Will requires the submission of numerous documents and information including the names of all of the decedent’s distributees (next of kin) and an estimated value of the probate estate. Estate lawyers in New York are familiar with the Surrogate’s Court rules and requirements regarding probate.

Sometimes the full probate can be delayed due to various issues. If an interested person is seeking to Contest the Will then the final determination regarding the validity of the Will may take months or years. The New York Probate Lawyer Blog has published many articles regarding Probate and Will Contests.

January 2, 2014

New York Disqualifies a Person from Inheriting Where the Person’s Conduct Causes Death

by Jules M. Haas

The New York Probate Lawyer Blog has previously discussed cases involving the disqualification of a person from inheriting from a decedent’s estate. Where a person murders another the New York Courts do not permit the murderer to profit from his wrongdoing. The wrongdoer is deemed to lose any inheritance he might receive from the decedent. This basic principal was recently affirmed by Nassau Surrogate Edward McCarty III in the case of Matter of Innocent Demesyeux decided on December 23, 2013 and reported in the New York Law Journal on January 6, 2014. In Demesyeux the Court was faced with the issue of determining whether a mother who killed her children would be disqualified from receiving a share of the wrongful death proceeds resulting from their death. The Court found that the basic principals of equity should prevent the mother from profiting where she apparently had the ability to know that her acts were morally wrong.

Disqualification of a person’s inheritance interests appears in other aspects of New York estate law. Estates, Powers and Trusts Law (“EPTL”) Section 4-1.6 provides that a joint tenant of a bank account forfeits rights of inheritance as to the joint account if convicted of murder in the first or second degree. Also, EPTL Section 4-1.4 provides a number of situations where a parent is disqualified from receiving a distributive share of a child’s estate. For example, under 4-1.4(a)(1) a parent is disqualified if he or she fails or refuses to provide for the child or if the child is abandoned. Similarly, EPTL Section 5-1.2(a)(5) provides that a spouse may lose inheritance rights if he or she abandons the other spouse. Under EPTL 5-1.2(a)(6) such rights may be forfeited if a spouse fails to support the other spouse. There are also instances where in the event a Last Will contains a “no contest” clause a person may forfeit any bequests under the Will if the clause is violated.

New York estate attorneys are aware that estate settlement and distribution often involve many unique and complex issues. The resolution of matters regarding the interests of potential beneficiaries and heirs at law requires the investigation of all facts regarding the decedent and the estate and determining whether and to what extent a Last Will or appropriate estate statutes apply. I have represented many clients including Executors, Administrators and beneficiaries of estates with regard to their responsibilities and entitlements.

December 4, 2013

New York Probate May Require the Publication of a Citation

by Jules M. Haas

Estate Attorneys in New York are familiar with the process by which a Last Will is admitted to probate. Probating a Will essentially involves presenting the Will to the Court for review and having the Court determine that the Will is valid. Once the validity of the Will is established by the Court, an executor is given the authority to carry out the provision of the document.

The probate procedures are set forth in the New York Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act. The first step is to prepare a petition which contains information regarding the petitioner, the decedent, the Will and the decedent’s assets. The person named in the Will as the Executor is usually the one that prepares the petition. The probate petition must also contain the name and address of the decedent’s distributees (i.e., next of kin). These are the parties, such as a decedent’s spouse, children, parents or more distant relations, who have a right to object to the Will. Such objections would result in a Will contest.

Typically, the distributees will be given an opportunity to sign a Waiver form by which they can indicate that they have no objection to the Will. If a waiver is not signed, the distributees must be served with a Citation. A Citation is like a Summons, which is issued by the Surrogate’s Court and advises the party served to appear in Court on a certain date to essentially tell the Court that the Will should be invalidated. The objecting party is then provided with the opportunity to obtain discovery of relevant documents and to take the testimony of witnesses such as the attorney who drafted the Will and the persons who witnessed the Will signing.

In most cases, the Citation is personally served on or delivered to the party to whom it is directed. However, there are occasions when the decedent’s distributees are either unknown or unable to be located. These cases require that the Citation be served in a different manner. When a distributee is unknown or their whereabouts cannot be determined the Court will require that an affidavit and relevant information be provided demonstrating that a full and diligent search has been performed to identify and/or locate the distributee. Once the Court is satisfied that the due diligence requirement is met, then the Court may allow the Citation to be served by publication in a newspaper in the locality having the greatest chance of being seen by the distributee. In an interesting recent case entitled Last Will of Gladys Maynard decided by Nassau Surrogate Edward W. McCarty III on October 31, 2013 and reported in the New York Law Journal on December 5, 2013, there was an issue regarding the validity of the publication of a Citation. The Court had directed that the Citation be published in a certain newspaper and the attorney for the petitioner requested that the publisher insert the Citation as directed. Unbeknownst to the Court or the attorney, the designated paper was no longer published so the publisher inserted the Citation in a newspaper that had replaced the discontinued paper. The Court found that the publication of the Citation in the different newspaper was a mere irregularity and not sufficient enough to invalidate the service for jurisdictional purposes.

New York Trusts and Estates attorneys regularly deal with issues regarding the service of Citations, affidavits of due diligence and kinship matters. I have represented many clients who were faced with resolving these issues in estate settlement.

October 23, 2013

New York Estate Executors and Administrators May Be Responsible for Real Estate

by Jules M. Haas

The estate of a decedent in New York may contain many different types of assets. The New York Probate Lawyer Blog has discussed in past posts that such assets may include bank accounts, stocks and bonds and real estate. In fact, real estate, in the form of a family residence, is commonly one of, if not the most, valuable asset involved in estate settlement.

An Executor or Administrator who is handling an estate that has a real property asset faces many issues. To begin with, the fiduciary must determine the ownership of the property. Real estate can be held in many different ways such as tenancy by the entirety between spouses, or joint tenancy with rights of survivorship, or tenancy in common among a number of parties. The manner in which a property is owned will determine the extent to which the decedent’s estate has an interest in such property. Moreover, there are a number of overlapping fiduciary responsibilities that flow from the determination of ownership. For example, if the decedent’s house is owned by the decedent and his spouse as tenants by the entirety, upon death the full ownership interest in the house passes to the surviving spouse and no portion would be part of the probate or intestate administration estate. However, the value of the house would need to be included in the decedent’s estate tax return (if a return must be filed). The estate fiduciary has a responsibility to prepare and file the estate tax return and pay any Federal or State estate taxes.

Suppose that the property was owned by the decedent along with others as tenants in common. In such a case, only the decedent’s share of ownership would be part of his probate or intestate estate and includable as part of his gross estate for estate tax purposes.

If, however, the decedent owned property as a joint tenant with rights of survivorship with a person who was not a spouse such as a child, upon the decedent’s death, the entire property interest would pass to the surviving joint owner. However, the entire value of the property would be includable in the decedent’s estate for estate tax purposes unless it can be shown that the survivor contributed monetarily towards the property such as payment of part of the purchase price.

Also, determining whether and to what extent a decedent owns real property may not always be an easy task. Many persons own property for many decades and may have inherited an interest in the property along with others over time. There may be co-owners of the property who predecease the decedent. In the event the estates of these co-owners were not have been administered it may prevent the clear transfer of the decedent’s property interest.

Another challenge facing a fiduciary is the valuation of the real estate. In most cases, a certified appraisal will be needed to provide an accurate and acceptable valuation for estate tax purposes and the potential sale of the property. If approval of the sale of property is needed from the Surrogate’s Court, the Court will require that a proper appraisal is obtained. In many instances of intestate administration, the Surrogate’s Court will appoint estate Administrators but place a restriction on their powers that requires the approval of the Court before the estate real property can be transferred, sold or mortgaged.

I have represented Administrators who have been required to obtain Court approval of their sale of real estate. Based upon my over 30 years of experience helping clients in Surrogate’s Court and real estate closings, I have prepared the necessary contracts and Court papers to obtain approval of the transactions.

October 2, 2013

New York Estate Litigation Can Address Wrongful Conduct During a Decedent’s Lifetime

by Jules M. Haas

The common view of the process of administering a decedent’s estate typically follows a progression whereby a person’s Last Will is probated, assets are located and collected, bills and taxes are paid, and finally the net estate is distributed to the estate beneficiaries. Generally, this description is applicable to many estates that are filed in the New York Surrogate’s Courts.

However, in numerous instances, the decedent’s family and the estate fiduciary, whether an Executor or Administrator, is faced with circumstances that might necessitate estate litigation or other Court proceedings to rectify wrongful acts that a decedent was subjected to prior to death.

For example, recently in a lawsuit brought by the pop star Michael Jackson’s family, it was alleged that Mr. Jackson’s promoter, AEG Live, was negligent in hiring the doctor that gave Mr. Jackson the drugs that resulted in his death. As discussed in an article by Eriq Gardner in the HollywoodReport.com on October 2, 2013, a jury found that the promoter was not to blame for the pop star’s death.

Another recent Court case in which a decedent’s heirs are seeking to protect rights or correct wrongs regarding a decedent involves the heirs of Frank Petrella who wrote an autobiography and a screenplay about the boxer, Jake LaMotta. Mr.Petrella died in 1981. As reported by Eriq Gardner in the HollywoodReporter.com on October 1, 2013, the United States Supreme Court has agreed to hear arguments regarding the dismissal of the heirs lawsuit which claims rights to the film Raging Bull and seeks damages from
MGM and 20th Century Fox for alleged infringement of copyrights.

Another example of estate litigation intended to rectify a wrong practiced upon a decedent is shown in a decision by Queens Surrogate Peter J. Kelly in Estate of Rita Koch, decided on September 13, 2012 and reported in the New York Law Journal on October 4, 2013. In Koch the petitioner sought to obtain copies of the personal banking records of a person who was the attorney-in-fact for the decedent during the decedent’s life-time. The Court allowed the discovery in view of the evidence that showed that the attorney-in-fact breached her fiduciary duties to the decedent by self-dealing.

As demonstrated by the above examples, administration of a decedent’s estate sometimes may involve more than just settling affairs by collecting assets and paying expenses. New York Estate Lawyers are familiar with the many instances in which lifetime occurrences affecting the decedent may need to be rectified by post-death estate Court proceedings. These post-death proceedings can include wrongful death or negligence actions, discovery proceedings against third parties who converted or wrongfully obtained assets from the decedent prior to death or the enforcement of agreements or contracts that the decedent entered into and were not adhered to by third parties. In these cases and others Executors, Administrators and family members need to be vigilant to protect the rights and assets that a decedent is entitled to.

July 10, 2013

New York Accountings May Be Compelled by the Surrogate’s Court

by Jules M. Haas

A New York Executor, Administrator or Trustee has many powers and obligations. As a fiduciary, such appointments require that a full record and account of activities be maintained so that an accounting can be provided to the estate or trust beneficiaries.

It is not uncommon for a beneficiary to complain that he did not receive either an accounting from a fiduciary or the full share of assets that he feels he was entitled to. The New York Probate Lawyer Blog has discussed in previous posts that the Surrogate’s Court Procedure Act (“SCPA”) provides a remedy when a beneficiary asserts that an accounting has not been provided. SCPA 2205 sets forth that the Court may issue an order that requires a fiduciary to file an account. Typically, the aggrieved beneficiary will prepare and file a Petition with the Court and a Citation is issued directing the fiduciary to appear in Court and state why he should not be required to file the account. Since the preparation of an accounting is fundamental to the completion of the fiduciary’s job, the Surrogate will almost always require the filing. If the fiduciary fails to appear on the Court date or does not comply with the Order to file, the Court may suspend or remove the fiduciary.

A New York Estate Attorney will usually represent an Executor, Administrator or Trustee in an accounting proceeding. Very often, the services of a fiduciary accountant are used to prepare the detailed schedules that are part of the papers to be given to the beneficiary and the Court. The schedules must be in accordance with the requirements of the estate rules. SCPA contains an Official Form 12 which is an Account of Executors and Administrators. Official Form 13 is an Account for Trustees.

While the Surrogate usually directs a court filing of a formal accounting, the Court appears to have some leeway in its determination. A recent decision by New York Surrogate Nora Anderson entitled Estate of Jean Kennedy decided on June 12, 2013 and reported in the New York Law Journal on June 21, 2013 is instructive. In Kennedy, Surrogate Anderson declined to require an Executor/Trustee to file a formal judicial accounting. The Judge ruled that such filing would not be in the best interest of the estate at the present time since the fiduciary had provided an informal accounting, was willing to provide the beneficiary with all requested financial information and it appeared that the beneficiary’s interests had already been satisfied with other assets.

I have found that a claim of breach of fiduciary duties and the failure to account to a beneficiary are very common aspect of Estate Litigation in the Surrogate’s Courts. While the New York Estate laws are very helpful and protective of the interests of beneficiaries, the Kennedy case shows that judicial decisions often reflect the needs of the particular facts and circumstances of the case.

Therefore, consultation with a New York Trusts and Estate Lawyer regarding fiduciary breaches and accounting requirements is important in order to present a matter to the Court in an appropriate fashion. As they say, one size does not fit all.

July 3, 2013

Estate Property Rights May Seem to Never Expire

by Jules M. Haas

The New York Estate Settlement process begins upon the death of an individual. Clearly, a person’s demise signals what seems to be an end to that person’s affairs and the settlement or winding up of matters and the distribution of estate assets. However, as shown in many posts in the New York Probate Lawyer Blog, a person’s death may initiate and involve events and issues that can continue for years or even decades.

Many aspects of the administration of a New York Estate can seem never-ending. For example, Estate Litigation involving Will Contests can delay the finalization of an estate for many years and involve proceedings in the Surrogate’s Courts. Many other disputes concern the ownership of a decedent’s assets. These controversies can take many different forms. A recent case decided by Kings County Surrogate Margarita Lopez-Torres on May 23, 2013 entitled Matter of Hasan related to the ownership of certain real property. In Hasan, the decedent had been a co-owner of property as a tenant-in-common. Thus, the decedent’s interest in the real estate passed to his heirs at law subject to necessary estate administration rather than to a co-owner as would have occurred if the property was held jointly with rights of survivorship. As discussed in the decision, after the decedent’s death, various deeds were executed transferring the decedent’s interest in the property without proper authority. After much litigation before the Surrogate, the Court declared these deeds null and void.

Other estate asset rights may result in the perpetuation of estate matters. These rights may involve interests in a business, copyrights, trademarks and rights of publicity. As reported by Eriq Gardner in the Hollywood Reporter, Esq., on June 4, 2013, the heirs of the late film star Lon Chaney, Jr. commenced a lawsuit against Universal Studios. The lawsuit seeks damages for the improper exploitation of Mr. Chaney’s likeness. The film star died in 1973 and was famous for his role in many horror movies of the 1930’s and 1940’s such as the Wolf Man.

In another recent lawsuit, the Andy Warhol Foundation had claimed that artwork from a Warhol album cover from 1967 was protected by copyright and trademark laws and was being improperly exploited. As reported by Eriq Gardner in the Hollywood Reporter, Esq., on May 29, 2013, the parties had recently settled this Federal lawsuit.

As can be seen from the cases discussed and many other posts in this Blog, the settlement of a person’s affairs can be many times more complicated after they die than when they were alive. New York Estate Planning may be very helpful in avoiding some of the most complicated post-death issues. It is imperative that a full exploration and understanding of a person’s assets takes place when preparing an estate plan. Appropriate steps can then be implemented to provide for proper administration of property rights after death and to cure any defects or clarify any documents such as deeds, or copyright and trademark filings, so that disputes can be avoided.

June 19, 2013

New York Beneficiary Designations Are Always an Important Aspect of Estate Planning

by Jules M. Haas

Many situations have arisen over the years regarding the validity and effect of a beneficiary designation or clause that has been provided by a decedent.

The naming of a beneficiary of an asset or property can appear in a variety of forms. A person who prepares a Last Will includes provisions in the document naming various beneficiaries. These beneficiaries may receive a bequest of a specific amount of money or a more general gift of a share of an estate. Many other beneficiary designations occur outside of a Last Will. A person can designate a beneficiary of a life insurance policy or a retirement fund such as an Individual Retirement Account or 401K plan. Additionally, bank accounts can have a designated beneficiary. Such accounts are commonly known as In Trust For or ITF accounts, or Totten Trusts. A person who is named a beneficiary on this type of account typically has no right to receive any of the account funds until the death of the account owner.

In previous blog posts, the New York Probate Lawyer Blog has discussed the many problems that can arise when proper attention is not paid to these various beneficiary designations. For example, the beneficiary designations on a retirement account results in that account being paid to a named person. Such payment may conflict with the decedent’s intentions in a Last Will that disposed of an estate to an entirely different person. Also, intervening events such as the death of a named beneficiary or a divorce or a change in relationship may cause designations to become stale and not reflect the true desires of the decedent. Such a situation recently reached the United States Supreme Court in a case entitled Hillman v. Maretta. In Hillman a decedent had named his spouse as the beneficiary of his Federal Group Life Insurance. After getting a divorce, the decedent did not change the beneficiary designation to eliminate the former spouse. When the decedent died, the former spouse filed a claim for the insurance proceeds. The Hillman case involved the law of the State of Virginia which had a statute that provides that any death benefit to a former spouse is deemed revoked. Unfortunately, under our Federal system of laws, Federal law pre-empts State law and the revocation aspect of the Virginia law could not change the Federal insurance provision which provided for payment of the insurance proceeds to the ex-spouse.

However, Virginia had an additional provision in its law which provided that in the event of pre-emption, a lawsuit could be brought in Virginia by the rightful beneficiary against the ex-spouse to turn over the insurance proceeds. In Hillman the Supreme Court was asked to determine whether this provision allowing for the lawsuit, was also subject to Federal pre-emption. The Court found that the statute was pre-empted by Federal law and that this sort of end around the Federal directive was not available to defeat the ex-spouse’s right to receive the insurance proceeds. It is noted that New York has a statute that also revokes dispositions in the event of a divorce in Estates, Powers and Trusts Law Section 5-1.4.

The Hillman case is a red flag for all persons when preparing their New York Estate Plan. All assets need to be reviewed so that a complete analysis can be made as to the ownership of the asset and the name of any beneficiary who may have been named as a recipient. This complete review is required in order to avoid Estate Litigation and to facilitate Estate Settlement so that a decedent’s intentions and desires are fulfilled.

June 12, 2013

New York Estates May Require That a Bond Be Filed with the Surrogate’s Court

by Jules M. Haas

There are two fundamental procedural avenues that are followed when initiating proceedings in the Surrogate’s Court to administer a decedent’s estate. If the person died testate (having left a Last Will), the proceedings concern the Probate of the purported Will. If the person died intestate (without a Will), the proceedings are determined to be an Administration of the estate.

It is fairly common that a fiduciary or beneficiary of an estate may receive information that the fiduciary must be bonded or receive a bond in order to complete his appointment by the Surrogate’s. Court. The bonding requirement of an Executor (when a Will is probated) or an Administrator (in an intestate estate) is not as mysterious as it may sound.

A bond is essentially an insurance policy issued by a surety company that provides security for the estate assets. If the fiduciary misappropriates or improperly takes estate assets, the bonding company may be required to reimburse the estate for the loss and, in turn, try to recover the lost assets from the fiduciary.

In view of the financial risk that a surety incurs by issuing a bond to a fiduciary, the surety company will require that the fiduciary have a solid financial and credit background. I have been involved in a number of matters where a person was approved by the Surrogate’s Court to act as an Executor or Administrator only to be rejected by the bonding company. If the prospective fiduciary cannot obtain the bond required by the Court, he most likely would need to forfeit his appointment in favor or an alternate fiduciary who can satisfy the bonding company.

The amount of the bond required by the Court depends upon many factors. Primarily, the value of the decedent’s estate is the starting point. The greater the value of the assets, the larger the required bond. The bonding company will charge the estate an annual premium for the cost of the bond. The larger the amount of the bond, the larger the premium cost.

It is not uncommon to see standard language in a Last Will to the effect that the requirement of obtaining a bond by the Executor is waived. In most probate matters, the Court does not require the posting of a bond. However, there are a number of situations where even in probate proceedings the Court may require that a bond be filed with the Court as a condition to the fiduciary’s appointment. For example, if the Court is asked to issue Preliminary Letters Testamentary, Surrogate’s Court Procedure Act (SCPA) Section 1412(5) gives the Court discretion to require a bond.

The appointment of an Administrator in an intestate estate usually requires the filing of a bond (SCPA 805), although the filing can sometimes be avoided if all of the estate beneficiaries agree that the filing be dispensed with.

After Estate Settlement has been completed, the fiduciary is required to make a final distribution of estate assets to estate beneficiaries. When all beneficiaries have signed a Release Form or the Court has issued a Decree settling the fiduciary’s Accounting, the bond will be terminated.

I have represented many fiduciaries who have been required by the Court to obtain a Surety Bond. New York Estate Attorneys typically contact various agencies that act as brokers in connection with the Bond Application Process. Since it is not always easy for persons to qualify for a bond, it is a good idea to speak with a bonding company before papers or Petitions are submitted for Probate or Intestate Administration to get a preliminary determination as to whether the person applying to be appointed as a fiduciary can qualify for a bond required by the Court. I work closely with my clients in all aspects of estate administration and assist them with their bond applications.