New York Probate Lawyer Blog

August 31, 2021

New York Probate Requires a Determination of Domicile

The administration of an estate in New York requires that the Court find that it has jurisdiction to consider the matter being presented to it. Whether the case involves the probate of a Last Will and Testament or the settlement of an intestate estate, the Surrogate’s Court must be satisfied that it has the requisite contacts to accept the matter for determination. Such a decision is controlled by the issue of domicile, since the Court has jurisdiction over a New York domiciliary at the time of death.

Determining domicile is not always easy. Simply stated, domicile is the place where a person has a permanent home as opposed to a person’s residence. There can be many residences for a decedent but only one place of domicile. An individual’s intention is an essential part of finding out where a decedent’s domicile is located and the Surrogate’s Court typically reviews many factors along with the applicable laws and rules. The New York Probate Lawyer Blog has published many articles regarding estate settlement and domicile.

The complexity involved in determining a decedent’s domicile is shown in a recent Orange County estate case decided by Orange County Surrogate Timothy McElduff on July 20, 2021 entitled Matter of Estate of Matarazzo. In this case, the decedent died in 2020. She had lived for many years in Malverne, New York, but sold her New York home in 2015 and then went to live with a son in New Jersey. However, she used the address of another son in Greenwood Lake, New York to receive correspondence and file New York tax returns. In 2018, the decedent began to reside in a senior center in Pennsylvania, where she continued to reside until her death in 2020.

August 24, 2021

The Appointment of a New York Guardian Involves the Balancing of Many Factors

by Jules M. Haas

There are many factors to be considered in connection with the appointment of a Guardian for personal needs and property management pursuant to Article 81 of the Mental Hygiene Law. A recent post in the New York Probate Lawyer Blog discussed the requirement that clear and convincing evidence be presented before a Guardian is appointed. A recent Guardianship case entitled Matter of Elias B. decided by Broome County Supreme Court Justice David Guy on June 30, 2021 highlights the many considerations a Court needs to review in a Guardianship case.

In Elias, the alleged incapacitated person (AIP) had been hospitalized but was now ready for discharge. It appeared that the AIP was a developmentally disabled person who had lived in the community for a number of years and had received local social services assistance. However, the AIP had been unable to maintain a permanent living situation, but could find his way to receive medical and social services assistance, despite his transient existence. The Court found that the AIP could attend to some, but not all, of his activities of daily living.

It appears that as part of its discharge plan, the only housing facility that the hospital could find which would accept the AIP was located in New Jersey. The AIP refused to go to live in this location and the hospital could not otherwise discharge him without an established living environment. Thus, the hospital sought the appointment of a Guardian to assist with the AIP’s discharge and relocation.

August 17, 2021

New York Guardianship Appointment Requires Clear and Convincing Evidence

by Jules M. Haas

Article 81 of the Mental Hygiene Law provides the statutes regarding the appointment of a property management and personal needs Guardian.

A Guardianship lawyer is aware that these proceedings focus on a number of factors before a Court determines that a Guardian should be provided.

First and foremost, the inquiry concerns the ability of the alleged incapacitated person (“AIP”) to handle his affairs. This examination focuses on the AIP’s functional abilities commonly referred to as the activities of daily living. Thus, a full review of the ability of the AIP to engage in functions such as personal hygiene, attending to personal health decisions, domestic functions such as cleaning and caring for a residence, engaging in financial matters such as paying bills, understanding the nature and extent of assets and appropriately dealing with everyday matters. As set forth in MHL Section 81.02, a Court can appoint a Guardian if it finds that it is necessary to provide for a person’s personal and financial needs, and that a person would suffer harm because they cannot provide for such needs and do not understand and appreciate that they are suffering from such disability. The New York Probate Lawyer Blog has published many articles concerning Guardianship matters.

August 6, 2021

An Informal Accounting Can Settle a New York Estate and Preclude a Judicial Accounting

by Jules M. Haas

The settlement of a New York estate can be very complicated and involve many different issues. In fact, due to various problems, some estates may take years for estate settlement. However, there are three basic components to the process of administering an estate.

First, there are proceedings concerning the appointment of a fiduciary such as an Executor or an Administrator. When a decedent leaves a Last Will and Testament, a probate proceeding is initiated to have an Executor appointed. When a Will is admitted to probate the Court issues letters testamentary to the appointed fiduciary.

If a decedent dies intestate, then a petition for letters of administration is filed with the Surrogate’s Court. Letters of Administration are granted to the appointed estate administrator. The New York Probate Lawyer Blog contains numerous posts regarding probate and intestate estate administration.

July 30, 2021

How to Change a New York Last Will and Testament

by Jules M. Haas

Estate planning is very important and may be accomplished by the creation of a number of documents. These papers include a Last Will and Testament and a lifetime trust which may be revocable or irrevocable. Advance directives in the nature of a Living Will, Power of Attorney and Health Care Proxy may also be considered as part of an overall plan. The New York Probate Lawyer Blog contains numerous posts dealing with planning an estate in New York.

Due to changing circumstances, a Will or a trust may need to be modified. Such circumstances may include the death or incapacity of either a beneficiary or a nominated fiduciary such as an Executor or Trustee. Additionally, a person’s intentions regarding beneficiaries may require a change in dispositions or a person’s assets may have declined, increased or changed requiring new Will or trust provisions.

In any event, when the time comes to revise a document, there are a few important points to consider. To begin with, a Will can be modified simply by preparing a new Will and having it executed and witnessed in accordance with the New York laws contained in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.” It is generally insufficient to just place corrections, markings or cross-outs on the original. The Courts most likely are going to ignore these attempted corrections on the face of a Will unless they happen to be done in accordance with the above statute; i.e., duly executed and witnessed. Therefore, it is best to have an experienced estate lawyer assist with any contemplated revisions.

July 23, 2021

New York Intestate Administration – The Court Requires Accurate Information to Grant Letters

by Jules M. Haas

There are some very basic rules regarding the handling of a New York estate. Initially, a determination needs to be made as to whether or not a decedent had a Last Will and Testament or died intestate. If there is a Will, then a probate proceeding is filed with the Surrogate’s Court. In the event there is no Will, then a petition is filed to obtain letters of administration. The New York Probate Lawyer Blog provides extensive articles regarding both of these types of procedures.

Regardless of the nature of the proceeding that is being presented to the Surrogate’s Court, it is imperative that the information given to the Court be as complete and accurate as possible. The primary document which contains the essential substantive information is the petition which would typically be either a probate petition or petition for letters of administration.

The above petitions require various items of data such as the name and address of the petitioner, the name and residence address of the decedent, and date of death. Information is also needed as to the approximate value of the estate. This is required so that the Court can assess, among other things, the amount of the filing fees and the amount of the surety bond to be required if the Court decides that a surety bond is necessary. Bonds are most often required in intestate administration proceedings since most Wills contain a provision waiving the filing of a bond by the named executor.

July 15, 2021

Kinship – The Problems Faced by a Non-Marital Child

by Jules M. Haas

Kinship in New York is always an important factor affecting estate settlement. Most of the proceedings in the Surrogate’s Courts require that a decedent’s distributees or next of kin be included as interested parties. For instance, where a person dies intestate without a Last Will and Testament, the estate is distributable to distributees according to Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of an intestate estate.” The persons who have a right to be appointed as administrators in an intestate estate are similarly established pursuant to their status as next of kin in accordance with Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration.”

In a situation where a decedent leaves a Will, all of the decedent’s distributees must be identified in a probate petition and provided with notice of the probate proceeding. The reason for this is that the distributees have a right to contest a Will. If a Will is determined to be invalid, the estate would then pass to the next of kin through intestacy. The New York Probate Lawyer Blog has published numerous blog posts regarding probate and intestate estate administration.

Proving kinship is usually a difficult process. Marriage records, birth certificates, and other documentary evidence, as well as testimony from individuals with first-hand knowledge of a decedent’s family, are required. Due diligent efforts must be made to obtain this information. In the case of a non-marital person, the job of establishing paternal kinship is even more difficult. The important statute dealing with this issue is EPTL 4-1.2 entitled “Inheritance by non-marital children.” This statute describes the various avenues for proving such kinship.

July 9, 2021

Estate Distribution of Tangible Personal Property is a Common Source of Conflict

by Jules M. Haas

The settlement of an estate in New York involves many facets. Of course, in its initial phase, the appointment of a fiduciary such as an executor or administrator needs to occur. Thereafter, the fiduciary engages in the process of identifying and collecting assets, paying or resolving claims, debts or other estate obligations, and then, ultimately, making distributions to the estate beneficiaries. If a decedent had a Last Will and Testament, then the distribution of estate assets is made according to the terms of the Will. When there is no Will and a decedent dies intestate, distribution is made in accordance with Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.” The New York Probate Lawyer Blog contains many articles regarding the settlement of a decedent’s estate.

One type of asset which is sometimes overlooked in the estate planning process is tangible personal property. This asset can be comprised of all sorts of items such as furniture, jewelry, artwork and similar items. When preparing an estate plan, an estate planning attorney can include provisions in a Will whereby items of property can be specifically bequeathed to named individuals. For example, a diamond ring can be given to a named child or friend.

It should be noted that EPTL Section 5-3.1 entitled “Exemption for benefit of family,” provides that some of these property items are set aside for a surviving spouse or children under age 21 such as household furniture, musical instruments and appliances, as well as a motor vehicle having a value not exceeding $25,000.00. These items are not considered to be estate assets.

June 29, 2021

Transfers of Real Estate Prior to Death Require Proof of the Validity of the Gift

by Jules M. Haas

A very common issue that arises in estate litigation concerns pre-death transfers of assets. When a person prepares a Last Will and Testament, this document only controls assets which are owned by a decedent at the time of death. If an asset is transferred or re-titled into the name of another person prior to death, it is not part of the decedent’s estate whether he dies with a Will or intestate. While property owned by a decedent at death may be intended for post-death distribution to certain individuals, a pre-death transfer very often changes or circumvents such distributions. As a result, potential post-death beneficiaries often object to having their inheritance side-tracked by a lifetime transfer which occurs shortly before a decedent’s demise. The New York Probate Lawyer Blog discusses many types of Surrogate’s cases regarding property transfers.

This scenario is precisely what occurred in a recent Queens estate case entitled Matter of Varrone, decided by Queens Surrogate Peter Kelly on June 17, 2021.

In Varrone, the decedent died leaving five children. A number of years before her death, the decedent, through a series of deeds, transferred her home to just one of her sons, John. She also prepared a Last Will leaving her estate to John. Following the decedent’s death, another son, Charles, commenced estate litigation and sought to void the pre-death transfer of the home to John.

June 22, 2021

The Priority for Payment of Estate Debts Can Be Complicated

by Jules M. Haas

When an executor or administrator is appointed to settle an estate, there are many tasks which need to be accomplished. Among the most basic fiduciary duties is the collection of assets and the resolution or payment of the decedent’s debts and monetary obligations. The New York Probate Lawyer Blog discusses many of these matters in numerous posts.

While the payment of debts may seem rather routine, the process can be very difficult. To begin with, the estate representative must identify the debts and obligations which exist. These may include credit card or other credit obligations such as mortgages, car loans, stock margin accounts, home equity or other lines of credit. These types of items may be easy to discover and to determine the extent of a claim since there are typically periodic account statements sent showing the outstanding balance.

In many cases the decedent’s obligations may be more difficult to discern and quantify. There may be business debts or obligations to third parties involved in business transactions which are reflected in various agreements which are not apparent without a careful review of the decedent’s records. Obligations may also exist as a result of a past divorce or matrimonial pre-nuptial or settlement agreement. Such obligations may be binding upon a decedent’s estate as to future payouts or result in claims due to the decedent’s failure to make past due payments.