New York Probate Lawyer Blog

June 16, 2020

Who Should Act as the Estate Administrator and Why Does it Matter?

Estate planning in New York is important because it allows a person to create planning documents such as a Last Will and Living Trust. Advance directives in the form of a Power of Attorney and Health Care Proxy can also be made. While these papers reflect a person’s intentions regarding the disposition of assets and personal care, they also allow the selection of fiduciaries, such as Executors, Trustees and Agents.

In situations where a Last Will is not in place, a person dies intestate. As discussed in numerous posts in the New York Probate Lawyer Blog, an intestate decedent’s estate is distributed to his next of kin called distributees. While the determination of kinship may sometimes be complicated and require the services of genealogists, the selection of the estate Administrator may be equally challenging and contentious.

Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration,” sets forth the right of priority of persons to receive appointment as an administrator of an intestate estate. As can be expected, a spouse has priority, then children, and then more distant relatives. Invariably, problems arise when there are multiple candidates occupying a priority class such as children or brothers and sisters.

June 12, 2020

A New York Estate May Have Out-of-State Assets – Some Insights

by Jules M. Haas

A person who is a New York domiciliary typically has his estate administrated in the County Surrogate’s Court where he maintained his home. Domicile is a person’s primary home as opposed to numerous residences which may be used.

Whether a New York decedent has a probate estate or dies intestate without a Will, primary estate proceedings are filed in New York. However, it is not uncommon for a decedent to own various forms of property outside of New York. Administering such assets may be complicated and challenging.

Where an administrator or executor is appointed in New York, such fiduciary generally has the authority to access and collect all of the decedent’s personal property. For example, the New York executor should have no problem collecting bank accounts or other similar assets that are held in financial institutions in different states such as California. These institutions may require certain forms and certified documents to be presented but will recognize the authority of the New York fiduciary to close and collect accounts.

June 5, 2020

Did You Know That Estate Litigation is Usually Not For Federal Court

by Jules M. Haas

The forum for proceedings regarding a decedent’s estate is typically the Surrogate’s Court. Probate proceedings and requests for intestate administration are filed in the Surrogate’s Court in the county where the decedent lived. For example, if the person lived in Manhattan, the estate proceedings would be filed in the New York County Surrogate’s Court. This would be so even if the individual happened to die in a different location, say on vacation in another state or country. The New York Probate Lawyer Blog should be referred to for numerous articles regarding estate proceedings.

Sometimes a litigant may want to commence a legal action regarding an estate in Federal Court rather than the local New York Surrogate’s Court. However, initiating estate cases in Federal Court may be prohibited. This is due to a well-known Federal Court rule called the Probate Exception.

In order to utilize the Federal Courts, there needs to be a basis for the Federal Court to have jurisdiction. Basically, there must be a Federal question presented or diversity jurisdiction. However, even where diversity jurisdiction may exist, the Federal Probate Exception may preclude Federal Court involvement. This is what occurred in a recent case decided by Federal District Court Judge Kiyo Matsumoto on May 29, 2020 entitled McKie v. Estate of Dickinson.

May 29, 2020

Why Full Discovery is Required in a New York Will Contest – A Case in Point

by Jules M. Haas

Estate planning and creating a Last Will and Testament is important. However, during the planning process, attention must be given to the eventual probating of the Will. When a Will is admitted to probate by the Surrogate’s Court, the effect is to validate the terms and provisions in the document. At that time the executor is granted letters testamentary and can begin the estate settlement process.

The New York estate laws and procedures require that notice of the probate case be provided to the decedent’s heirs at law who are known as distributees. These persons have a right to object to the probate of the Will. The New York Probate Lawyer Blog contains many posts with information about probate and many other estate and guardianship issues.

A Will contest is a proceeding that involves extensive estate litigation. Similar to most types of controversies, the relevant law allows for extensive pre-trial discovery. Simply put, discovery allows each party to obtain documents and testimony from various sources for the purpose of discovering information and evidence to be potentially presented at a trial or other Court hearing.

May 22, 2020

Planning for the New York Non-Traditional Family – Some Considerations

by Jules M. Haas

Like most things in life, estate planning in New York comes in all different shapes and sizes. Each person has their own unique situation regarding assets and desires concerning advance directives and post-death distributions.

When reference is made to a so-called non-traditional family, the reality is that in today’s world, nothing is really non-traditional. However, the reference is important for at least calling attention to situations that require extra care and scrutiny to fulfill estate planning goals.

In a traditional sense, a person will plan for a wife and/or children who are persons that are considered to be next of kin. Thus, even if there was no Will or other planning documents, such persons would inherit or have other priority rights as primary heirs. However, when the intention is to benefit others such as unmarried domestic partners or friends, the lack of a properly prepared Will, Health Care Proxy or Power of Attorney can lead to unintended results. This is due to the fact that the unrelated friend or individual would generally have no statutory priority rights to make lifetime decisions or receive a post-death inheritance.

May 15, 2020

Can a New York Trust Evict Occupants from Trust Property – Some Important Points

by Jules M. Haas

One of the responsibilities of a fiduciary, whether an Executor, Trustee or Administrator, is to discover, administer and protect the assets of an estate or trust. When assets are in the form of bank accounts or other financial funds, these items can be transferred into a new estate or trust account and controlled thereafter by the fiduciary.

Many trusts and estates own different kinds of assets. One of the most valuable assets is real estate. This item may be in the form of residential property such as a single family home or even a condominium. There may also be vacant land or commercial property. A very common problem faced by a fiduciary is that a third party is occupying the estate or trust real estate without the right to remain there. Such improper occupancy can cause problems with the management of the real estate since access to the property may be restricted. Also, the presence of an authorized occupant may interfere with the sale of the real estate or lower its market value.

In these situations, the fiduciary usually can bring eviction type proceedings in the Surrogate’s Court or the appropriate landlord-tenant Court. I have represented fiduciaries and occupants in these eviction cases on many occasions. The New York Probate Lawyer Blog contains many posts dealing with real estate matters and also evictions.

May 12, 2020

Did You Know New York Executors and Administrators Need to Prepare Estate Accountings

by Jules M. Haas

A New York estate is administered by an Executor or Administrator. An Executor is appointed when a Last Will is admitted to probate. The appointment of an administrator occurs in a case when the decedent dies intestate without leaving a Will.

The job of the estate fiduciary encompasses many functions. First and foremost, the decedent’s assets need to be discovered and collected. This process may be time consuming but is very important. If a fiduciary fails to properly protect and collect assets he may be held personally liable due to a breach of fiduciary duty.

Next, the estate fiduciary is responsible for handling all estate administration matters such as paying debts, claims, expenses and taxes. This aspect of estate settlement can take a lot of time and effort. Sometimes the settlement of debts and claims may involve estate litigation in the Surrogate’s Court. Generally, the administrator or executor cannot settle an estate and make a distribution to estate beneficiaries prior to seven months after appointment without first resolving all estate claims. If a distribution is made before the end of the seven-month time period, the fiduciary may be personally responsible to pay any open debts or claims.

May 5, 2020

Understanding an Individual’s Intentions with Regard to Estate Planning and Advance Directives

by Jules M. Haas

Many of the issues concerning estate planning, including the preparation of Last Wills, Living Wills, Health Care Proxies and Powers of Attorney involve the personal intentions of the creator of the document. For example, a Will should reflect the manner in which the testator desires or intends his assets to be disposed of at the time of death. Likewise, the identification of agents and the delineation of powers and directives in a Power of Attorney or Health Care Proxy is meant to show the principal’s desires concerning his property management and personal needs in certain situations that may occur.

However, the provisions in these documents, on their face, capture a person’s apparent intentions at the moment in time when the document is created. The enduring nature of the document, unless revoked or modified, effectuates such intentions years or perhaps decades after they were originally formed. An underlying question may be whether such recorded directives actually reflect what a person wants to happen at the time when the controlling document (i.e., a Will) becomes effective or put into use. If intentions have changed, the document is not a true representation of a person’s wishes.

A recent article written by Solangel Maldonado in Trusts and Estates dated April 27, 2020 entitled “End of Life Health Care Decision Making: Lessons for Wills, Trusts and Estates Law,” provides a review of an article written by Jane B. Baron that is to be published in 87 Tenn. L. Rev. entitled “Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making.” The essence of the above articles is a discussion of issues regarding whether a person’s intentions are, in reality, fluid and may change over time, thus, creating a possible need to seek alternative ways of discerning and giving effect to someone’s intentions at the time they are to be effectuated outside of a formal writing.

April 28, 2020

Information Regarding the Right to Object to a Will in New York

by Jules M. Haas

After a person dies, there is a need to settle the estate of the decedent. If the decedent prepared a Last Will and Testament, then the Will needs to be probated.

The New York probate process can be complicated, especially if there is a Will Contest. One of the most important initial steps in Will probating is determining the identity of the decedent’s next of kin, who are also known as distributees. Surrogates’ Court Procedure Act (SCPA) section 103(14) defines “Distributee” as “any person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.” The probate petition must contain information as to the names and addresses of the distributees since they are among the persons entitled to receive notice regarding the commencement of the case. They also have a right to contest the Will since the distributees receive an intestate share of an estate if there is no Will. Service of process is important because the probate of a Will is not valid against interested persons who were not properly notified about the case. The New York Probate Lawyer Blog has extensively discussed probate and Will contests in earlier posts.

A person filing a probate petition with the Surrogate’s Court needs to refer to SCPA section 1410 entitled “Who may file objections to probate of an alleged will”. Under this statute, if a person who is interested in an estate would be “adversely affected” if a Will is probated, such person may be entitled to file objections to the Will. The statute must be examined carefully in each case to ascertain the identity of interested parties. Estate litigation is complicated. In addition to distributees, persons who may have received bequests in earlier Wills, but who are now disinherited in a later Will being offered for probate, may be necessary parties who must receive notice (a citation) in the proceeding.

April 24, 2020

What is a Citation in Surrogate’s Court and How to Respond

by Jules M. Haas

As a New York Estate Lawyer, I am frequently contacted by individuals who have received a paper from the Surrogate’s Court that is titled at the top with the word “CITATION.” Most people are not familiar with the procedures involved in estate settlement or estate litigation cases or the requirements in the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA) regarding the giving of notice to other parties.

A Citation is similar to a Summons that is served on a party when a civil lawsuit is commenced. In a civil lawsuit parties are generally referred to as plaintiffs and defendants. In the Surrogate’s Court, the references are usually petitioners and respondents. A Citation is issued by the Court Clerk and indicates that some type of proceeding has been started in the Court. This is typically the Clerk in the department of the Court in which the proceeding is filed. For example, if a probate proceeding has been filed, then the probate clerk generally issues the Citation.

The Citation is the Court paper that is used to notify interested parties about the commencement of a case. SCPA section 306 entitled “Citation” provides the various requirements regarding the information that the Citation must contain. Among other items, it should identify the name and domicile of the person whose estate is the subject of the case. It also needs to list the names of all the persons who are to be served with the paper. Proper service of the Citation is essential since it allows the Court to obtain jurisdiction over all the parties to be served and to make a determination regarding the issues that may be presented. The various sections of the estate laws must be carefully reviewed to learn the proper manner of service of the Citation. Typically, personal delivery is needed for service on parties in New York while certified mail may be allowed for out of state respondents.