New York Probate Lawyer Blog

November 23, 2021

Which State Law Controls Estate Administration and Why Does It Matter

In most New York estates, there is no question or controversy as to which state law applies to estate administration. When a person who lives and maintains his primary residence in New York, the provisions of New York estate law are looked to regarding estate settlement. Thus, a probate proceeding or petition for letters of administration is filed in the county where the decedent resided. The New York Probate Lawyer Blog has published dozens of articles concerning probate and intestate estates.

The fundamental principle which controls the jurisdictional law that applies to a decedent’s estate is known as domicile. A person may have different residences in various states or countries. However, there is only one domicile. A person’s domicile is simply stated as being his primary home. While the issue of domicile determination can involve an examination of various facts, seeing where a person files local taxes, maintains a business, has a driver’s license and considers his home to be are significant starting points.

Domicile is important because the laws affecting an estate may vary from state to state. For instance, a New York domiciliary estate is subject to New York law which includes statutes contained in the New York Estates, Powers and Trusts law. An example of one right that may be affected relates to a spouse’s right to avoid disinheritance commonly known as a right of election. Under EPTL Section 5-1.1A, a surviving spouse has the right to obtain at least one-third (1/3) of a decedent’s estate. However, Section 5-1.1A(c)(6) states, in part, that the right of election “is not available to the spouse of a decedent who was not domiciled in this state at the time of death.” As a result, if a decedent was a domiciliary of a state other than New York, that state’s estate law would control any right of election for the surviving spouse. Interestingly, the above statute allows a decedent to elect to have the New York statute apply.

November 12, 2021

Transferring a Cooperative Apartment to a Living Trust

by Jules M. Haas

Estate planning in New York encompasses many types of considerations. The most common way to plan an estate is to prepare a Last Will and Testament. When a person dies, a Will must be filed with the Surrogate’s Court to be validated. This is known as the probate process. Probating a Will involves filing a petition with the Court. All of the decedent’s next of kin must be given notice of the proceeding. Most probate matters are rather routine, and the Will is admitted to probate, and letters testamentary are issued to the nominated executor. The New York Probate Lawyer Blog contains many posts dealing with estate administrators and estate settlement.

Sometimes a person desires to avoid probate. There can be many reasons for avoiding a Court proceeding. One of the main goals is to avoid a possible Will contest. Another reason may be to prevent a search for next of kin who may need to receive notice in the probate case.

The creation of a Living Trust or a Revocable Trust is a means by which assets can be transferred without the need to probate a Will. In order for a Living Trust to be effective, all of the grantor’s assets must be transferred into trust ownership. This transfer is easy for financial accounts where the title of the account can be changed into the name of the grantor as trustee of the trust. Other assets, such as real estate or the ownership of a cooperative apartment, may be more complicated. As to real estate, a deed and other transfer documents must be prepared and filed with the appropriate county office to show the transfer of the ownership into the trust. Tax forms and other recording papers and fees need to be properly accounted for.

November 4, 2021

Three (3) Important Considerations When Preparing and Executing a Will and Estate Documents

by Jules M. Haas

It is apparent that the preparation of New York estate planning documents is important. A lot of time and effort can be expected in connection with reviewing assets and financial interests, figuring out the manner in which dispositions are to be made to beneficiaries and implementing the papers and documents to formalize the plan. In view of the commitment to start and finish this procedure, it is equally important to make certain that the documents that are prepared are correctly and properly created and also executed.

While there are many considerations involved in the above process, these three (3) areas should be at the top of the list.

Expressing Creator’s Intentions: The whole point of planning an estate is to insure that a testator or creator of a document can memorialize his intentions regarding the disposition of assets. Thus, the papers that are prepared, whether a Last Will and Testament or Living Trust or even advance directives, such as a power of attorney or health care proxy, should contain clear and unambiguous provisions and directions. It makes sense to consult with an estate lawyer who is familiar with drafting clauses which effectuate intentions regarding bequests and contain appropriate dispositive language. Even the simplest of documents may require clauses dealing with alternative or contingency dispositions. Also, it may be necessary to include specialized language concerning estate tax matters or the payment of estate debts or expenses. A well drafted, unambiguous Will or Trust is essential for the creator’s intentions to be accomplished.

October 28, 2021

Did You Know that Will Proponents and Contestants Pay for Costs to Contest a New York Will?

by Jules M. Haas

Contesting a Will in New York involves many different rules of law and procedures. The Estates Powers and Trusts Law (EPTL) and the Surrogates Court Procedure Act (SCPA) provide various guides. At its essence, the validity of a decedent’s Will must comply with EPTL Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.” According to the requirements of the statute, a Will needs to be written, signed at the end by a testator, and there must be at least two attesting witnesses. If the rules regarding the execution are not complied with, then objections to a Will based upon lack of due execution may be successful. In such a case, a Will is not admitted to probate.

Other grounds for Will contests include lack of testamentary capacity and undue influence. Proving the existence of these circumstances is often difficult. The New York Probate Lawyer Blog has published many articles discussing Will contests and Surrogate’s Court matters.

One of the questions which arises in connection with probate and Will contests is payment of the costs associated with the proceedings. Putting aside legal fees, there are a few items which should be of interest. Contested probates typically begin with discovery of information under SCPA Section 1404 entitled “Witnesses to be examined; proof required.” This statute allows for obtaining documents and deposition testimony from the attorney who drafted the Will and the attesting witnesses. Payment for a Court reporter to transcribe deposition testimony can be costly. If a person wants to obtain this testimony, he may need to incur substantial expenses. However, according to SCPA 1404(5), the testator’s estate is responsible to pay for the examination of the first two attesting witnesses.

October 20, 2021

New York Limited Letters of Administration – A Useful Procedure to Search for Assets

by Jules M. Haas

In the typical estate situation, the Surrogate’s Court will appoint either an Administrator or Executor to handle estate affairs. An Executor is appointed when the decedent leaves a Last Will and Testament. When a decedent dies intestate without a Will, an Administrator is appointed.

The right to be appointed as a fiduciary of an estate is restricted. Executors and Successor Executors are typically designated in a Will. The Surrogate’s Court gives great deference to the selection made by a testator as to fiduciary appointment. The Court is very reluctant to ignore a designated person and will appoint such designee unless there are very strong reasons not to do so. The mere dislike of nominated executors by Will beneficiaries, or even conflicts of interest, generally does not result in disqualification.

As to administrators, the right to be appointed is controlled by Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of priority for granting letters of administration”. Pursuant to this statute, the kinship status of the next of kin such as a spouse, children, grandchildren, etc. provides the right of such person to be appointed as estate fiduciary. In the event a person does not qualify under this statute, the Court will not appoint him as an administrator. The New York Probate Lawyer Blog contains many articles dealing with the probate of Wills and estate administration.

October 12, 2021

A New York Fiduciary Can Restrain the Transfer of Alleged Estate Property

by Jules M. Haas

A New York Executor or Administrator has many duties and obligations. Among these matters is the necessity to identify, protect and collect estate assets. The many powers granted to a fiduciary are set forth in Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ powers.”

While collecting assets such as bank accounts and mutual funds is typically routine, there are many situations where asset collection can be difficult and time consuming. For example, there are many cases where a decedent owned real estate such as a single or multi-family property. Very often, in order to provide liquidity to satisfy estate debts such as a mortgage or to allow for distributions to a number of beneficiaries, the real property must be sold. However, there are circumstances which can interfere with a property sale. The property may be occupied by relatives or third parties who refuse to vacate. This situation can result in potential damage to the property or a diminution in the value of a sale. Sometimes real estate cannot be sold at all unless it is vacant. The New York Probate Lawyer Blog contains many articles discussing the issues associated with estate real estate.

In other cases, property that may be owned by a decedent is held in the name of another party. These matters necessitate Surrogate’s Court proceedings whereby the administrator or executor initiates proceedings in the Surrogate’s Court to obtain the turnover of the claimed property to the estate. SCPA Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information,” provides the procedure to discover and enforce title to assets to which an estate claims ownership.

October 4, 2021

New York Guardianships – The Britney Spears Dilemma

by Jules M. Haas

The primary guardianship law in New York is contained in Article 81 of the Mental Hygiene Law (“MHL”) which is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.” The New York Probate Lawyer Blog contains many posts discussing guardianship law and procedure.

When a guardian is appointed, the New York Courts grant an Order which specifies and limits the powers which the guardian can exercise regarding the personal affairs and property management of the incapacitated person. However, before a guardian is appointed, there are numerous safeguards in the law intended to protect the rights of a person who is alleged to be in need of a guardianship. The recent case involving Britney Spears, while occurring in a state other than New York, brings to light the importance of adhering to and implementing these safeguards.

For example, before a guardian can be appointed, MHL Section 81.02 requires that the appointment is necessary to provide for someone’s personal and property needs and that the person is incapacitated. The statute goes on to provide that incapacity must be based upon clear and convincing evidence and show that a person will suffer harm because of their inability to attend to their affairs and that the person does not understand and appreciate their inability to meet their own needs.

September 22, 2021

New York Estate Litigation – An Unhappy Place

by Jules M. Haas

Following a person’s death, the settlement of an estate, and any testamentary trusts which may be involved, typically occurs through proceedings in the Surrogate’s Court. The New York Probate Lawyer Blog has published numerous articles concerning the probate and administration of estates. As can be seen from a review of these publications, the types of estate litigation which can occur appears almost endless.

Just to review a few examples, leading the list as far as common recognition is the Will Contest. In these cases, typically heirs of the decedent who have not received what they believe is appropriate under a Will offered for probate file objections to the Will. These Will Objections usually focus on lack of due execution, undue influence and lack of testamentary capacity. The contest of a Will is a long and complicated process which may take years and outcomes are never certain. If the contestants put forward a viable case, it may very well result in a settlement.

Another very prevalent source of Surrogate’s Court litigation involves determining a decedent’s next of kin. Kinship proceedings appear in both intestate administration matters and probate. Both types of proceedings require that the decedent’s next of kin or distributees be accurately and fully identified and brought into the case to assert their rights. Determining next of kin can be difficult and often requires the services of expert genealogists.

September 16, 2021

Can a New York Executor Seek Direction from the Court Concerning Fiduciary Decisions – Yes, in Special Circumstances

by Jules M. Haas

When a person is appointed by the Surrogate’s Court as an Administrator or Executor of a decedent’s estate, he assumes a great deal of powers and responsibilities. Estates, Powers and Trusts law Section 11-1.1 entitled “Fiduciaries powers” sets forth an extensive statement of authority which an estate fiduciary may exercise. The statute includes such powers as a right to invest estate property, collect rents, sell property, mortgage property, make repairs, contest or settle claims for the estate and to distribute estate assets, just to name a few of the many areas of authority.

While an executor or administrator may have these numerous powers, there is also a requirement that the fiduciary act properly and responsibly. If he abuses his powers he may be found to have breached his fiduciary duties and be held personally liable for any loss or damage caused by his actions.

There are many situations where a fiduciary who is settling an estate needs to make decisions but the outcome of his action is not clear. The fiduciary knows he needs to act but does not want to proceed if things go wrong and he is held to account for any loss or harm to the estate. For example, an estate may hold property or assets which need to be sold to pay estate obligations or to effectuate distribution to beneficiaries. The executor or administrator may not know whether the potential sales price is sufficient so as to avoid criticism from the parties interested in the estate. Obviously, if a fiduciary can obtain pre-sale approval from the Surrogate’s Court, he may be able to avoid estate litigation or a contested accounting proceeding.

September 8, 2021

A New York Will Contest Requires Substantive Evidence to Proceed

by Jules M. Haas

When a person dies and leaves a Last Will and Testament, the validity of the document is subject to the probate process. The estate laws and procedures provide that a probate proceeding be commenced in Surrogate’s Court. Proceedings for the probate of a Will require that all of a decedent’s next of kin, referred to as distributees, must be provided with notice of the pending case.

In order to obtain Court jurisdiction over distributees, one of two things must occur. Either a distributee voluntarily appears and oftentimes consents to the probate of the Will, or alternatively, the distributee must be served with a Citation which directs the distributee to appear in Surrogate’s Court and state why the Will should be objected to and denied probate.

Objecting to a Will or a Will contest involves different aspects of investigation. A recent Queens estate case entitled Matter of Logan, decided by Queens Surrogate Peter Kelly on July 26, 2021, provides an insight into these areas of examination. In Logan, the Court found that the Will was prepared by an attorney who also supervised the execution of the Will. Due to these facts, the Court noted that a presumption arose that the Will was duly executed. Execution of a Will must comply with Estates, Powers and Trusts Law Section 3-2.1, entitled “Execution and attestation of wills; formal requirements.” The Surrogate pointed out that since the Will also contained an attestation clause and a self-proving affidavit signed by the Will witnesses, a further presumption of due execution existed.