New York Probate Lawyer Blog

September 3, 2020

The New York Spousal Estate Share Can Be Difficult to Calculate

A person who is planning the disposition of estate assets needs to make a number of decisions. Among these is the identity of intended beneficiaries and the value or amount of the interest to be provided. These determinations can occur in different forms. Where someone prepares a Last Will and Testament the document is going to include various dispositions. Additionally, with regard to assets that pass outside of the administration estate, such as joint accounts or assets that have designated beneficiaries, the name of the intended payee must be provided.

A spouse of a decedent stands in a preferred position regarding the disposition of a decedent’s assets. This is because a spouse, unlike any other family member including children, cannot be entirely disinherited. Estates, Powers and Trusts Law Section 5-1.1.A entitled “Right of election by surviving spouse,” provides that the spouse is entitled to receive the greater of $50,000.00 or one-third of the decedent’s net estate.

The interesting and complicating aspect of EPTL 5-1.1.A is that it includes as part of the value of asset calculation items identified as “testamentary substitutes.” These items include assets that pass to third parties upon death such as bank accounts that are payable upon death either in a joint account or as a pay on death account or retirement or death benefit funds. The intention of the statute is to prevent a decedent from diverting assets for which a surviving spouse would have a right to receive a share of. The New York Probate Lawyer Blog has posted numerous articles regarding estate settlement and spousal rights.

August 27, 2020

Out-of-State Family – New York Estate – No Problem

by Jules M. Haas

It is not uncommon for a person who is domiciled in New York to have the persons who are interested in his estate residing outside of New York. This situation can occur in a number of contexts.

In the event a decedent created a Last Will and Testament, the document may have designated an out-of-state individual to serve as Executor. Contrary to some misinformation, there is no prohibition for a person who resides in another state or even another country to serve as a New York estate executor. Reference should be made to Surrogate’s Court Procedure Act (SCPA) Section 707, entitled “Eligibility to receive letters.” The statute provides that a non-domiciliary alien is not eligible to serve as a fiduciary. Thus, if a person resides in New York and is a qualified resident, or is a U.S. citizen and lives anywhere in the world, he would qualify to serve as an executor. The statute also allows a non-domiciliary alien to serve as a fiduciary as long as they serve with a New York resident co-fiduciary.

The above rules apply equally in the case where a decedent dies intestate. An out-of-state distributee (next of kin) can qualify as the administrator. SCPA Section 1001 entitled “Order of priority for granting letters of administration” identifies the persons who can become administrators based upon their relation to the decedent.

August 19, 2020

New York Will Contests – A Few Basics to Remember

by Jules M. Haas

In order for a Last Will and Testament to be valid, it must be admitted to probate. Probating a Will in New York requires following all the procedures in the Surrogate’s Court. Many times a person who is disinherited or does not receive what he expects in the Will provisions feels that the Will must be invalid. The conclusion reached is that the document must have been procured through fraud, undue influence or other wrongdoing.

The reality of these cases is that most Wills that are prepared by an attorney and executed under an attorney’s supervision are found to be valid. When the statutory formalities provided by Estates, Powers and Trusts law section 3-2.1 entitled “Execution and attestation of wills; formal requirements” are followed, a contest of a Will is usually dismissed. While undue influence and other grounds may result in a denial of probate, such an outcome is difficult to achieve. The Courts typically prefer to see that a testator’s intentions are carried out through the terms of a Will rather than left to the uncertainly of intestate distribution. The New York Probate Lawyer Blog has posted many articles regarding probate.

A Manhattan estate case entitled Estate of Menchini demonstrates that the Courts tend to favor admitting a Will to probate. Menchini was decided on March 18, 2019 by Manhattan Surrogate Rita Mella. The decedent had left most of his estate to a friend who was also named as an alternate executor. The decedent’s brother challenged the Will based upon lack of due execution and fraud. It appears that the Will was not prepared by an attorney, nor did an attorney supervise the execution ceremony. The Will was signed in the office of a Reverend of a local church. There were two witnesses, although one witness predeceased the decedent and was not available to testify. Also, a notary was present to notarize the witness affidavits.

August 13, 2020

How Determining Kinship Can Complicate a New York Intestate Administration Case

by Jules M. Haas

A person who dies without a Last Will and Testament is said to have died intestate. According to Estates, Powers and Trusts Law (EPTL) Section 4-1.1, entitled “Descent and distribution of a decedent’s estate,” there is a statutory priority as to the identity of the individuals who are entitled to inherit a decedent’s estate. The statute provides, for example, that a surviving spouse is to receive $50,000.00 and one-half of the rest of the estate with the balance to be shared by the decedent’s issue (i.e., children and descendants).

In most cases, determining the identity and location of the next of kin or distributees, as referred to in the statutes, is not a problem. Not only do these individuals receive a share of the estate, they may be entitled to serve as the estate Administrator.

In addition, since such persons must be given notice of the Surrogate’s Court proceedings, the Court requires that they be fully identified in the Court filings. There are many circumstances that may be present when identifying a decedent’s next of kin which can delay and complicate estate settlement. Here are a few of the more common problems.

August 5, 2020

Is the Estate Tax Still Important to Consider for Estate Planning?

by Jules M. Haas

During the course of preparing a New York estate plan, many different issues must be considered. Initially, the basic plan must identify beneficiaries and the property or amounts each is to receive. A thorough review and understanding of the creator’s assets and the ownership interests are essential. As extensively discussed in the New York Probate Lawyer Blog, a Will only controls assets that are held in the decedent’s name alone. Joint assets and assets with designated beneficiaries pass to the named parties automatically upon death.

Still another concern is whether to create a Living Trust as a primary vehicle for post-death transfers or to rely primarily upon a Last Will.

Regardless of the type of estate plan created, some consideration should be given to any possible effect of estate taxes. In recent years, estate taxes have received less of a review because the exemption amounts have generally increased. For the year 2020, the Federal estate tax exemption protects assets up to $11.58 Million. A husband and wife combined can protect double this amount. Also, all assets passing between a husband and wife are fully deductible and are not subject to estate tax.

July 30, 2020

New York Court Says Using a Pre-Printed Last Will Form Can Cause Probate Problems

by Jules M. Haas

Estate planning in New York, and probating a Last Will in Surrogate’s Court, go hand in hand. When a person engages in preparing and executing a Last Will, attention must be given to the eventuality of submitting the document to the probate process. As discussed in many posts in the New York Probate Lawyer Blog, a Will must be executed in accordance with the statutory requirements set forth in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”

It has become more common that individuals prepare their own Will documents. Many forms of Wills are available on the internet. These can be found in legal document catalogues or through various legal document drafting services. When it comes to a Will, not only does the document need to contain specific and properly worded and organized information, the execution and signing process needs to meet statutory requirements. Thus, when self-help methods are utilized without the assistance of an attorney, the prospects for estate litigation and confusion can increase dramatically. Such was the situation in a recent Rockland County estate case entitled Matter of Estate of Tsinopoulos, which was decided by Rockland Surrogate Keith Cornell on July 17, 2020.

In Tsinopoulos, the decedent used a Will form which she completed herself without the assistance of an attorney. She then had the Will executed in her local bank, again, without the assistance of counsel. While there is no prohibition against preparing and executing a Will without an attorney, the involvement of an estate lawyer gives the execution of the document a presumption of validity. In this case, the Will left virtually all of the decedent’s assets to her daughter, which prompted the decedent’s son to file objections to the Will and engage in a Will contest.

July 23, 2020

Can a Nominated Executor Object to a Later Last Will

by Jules M. Haas

A person may prepare and execute a number of Last Wills during the course of a lifetime. It is not unusual to find that a testator signed a new Will only a few years after having created the earlier document.

In these situations, the provisions in the Wills may be drastically different which may lead to questions regarding the validity of the later document. The New York Probate Lawyer Blog has recently published articles concerning Will contests and the standing or right of an individual to file objections to a Will. In essence, a person must have a pecuniary or financial interest in defeating the Will being offered for probate in order to object to its validity. The statute that provides the rule in this regard is Surrogate’s Court Procedure Act Section 1410 entitled “Who may file objections to probate of an alleged will.”

One common situation is that the individual nominated as executor in a later Will is different from the person named in an earlier Will. As a result, the earlier named executor may feel that he would want to object to the later Will, which deprived him of his potential executorship. Executors like all fiduciaries are entitled to receive statutory commissions which may be tens of thousands of dollars in larger estates.

July 16, 2020

New York Will Contest Discovery May Be Prevented by Prior Agreement

by Jules M. Haas

In a recent post in the New York Probate Lawyer Blog, we discussed the necessity of reviewing various documents that may have an impact on a person’s estate planning or the administration of his estate. Such papers would include divorce or matrimonial agreements and business papers.

A recent Manhattan estate case decided by Manhattan Surrogate Nora Anderson on July 6, 2020 provides an excellent example of the need to examine such papers and agreements. In Estate of Kaufman, the decedent left a Last Will and Testament in which his estate was disposed of between a nephew and another relative.

The decedent was survived by his wife but did not provide for her in his Will. Prior to his death, the decedent was engaged in a divorce action with the wife. While the divorce was not finalized before his death, the couple had signed a Stipulation in which the parties divided their marital assets. The agreement also contained a comprehensive provision by which each waived their rights to share in the other’s estate.

July 10, 2020

New York Wills – Divorce Papers, Business Agreements and Other Documents That Can Impact an Estate

by Jules M. Haas

We know that when a person engages in the process of creating an estate plan, it is important to review all assets that may be part of the disposition framework. Assets that are owned in a person’s name are typically subject to the provisions of a Will. The testator creates the planning for the estate by molding intentions around such assets and other property like joint accounts which may pass directly to named beneficiaries.

Similarly, after a person dies, the estate fiduciary, whether an executor or administrator, investigates the ownership of the decedent’s property and collects the estate assets and pays the estate expenses and obligations. The New York Probate Lawyer Blog contains many informative articles regarding estate settlement.

During the course of administering an estate, the fiduciary must also ascertain whether the decedent was subject to any obligations under various types of lifetime agreements. These obligations may continue after the decedent’s death and constitute claims against the estate or otherwise affect the distribution of the estate property. A few examples of such documents and their potential impact will highlight the necessity for a full review during the planning process and post-death settlement of the estate.

July 1, 2020

The Real Estate Closing – An Estate Perspective

by Jules M. Haas

Many decedents’ estates contain assets in the form of real estate. A decedent may have owned a home or rental property or a commercial building containing a business. Such items are typically the most valuable items among the decedents’ assets.

If a decedent left a Last Will, such document may provide for the disposition of a specific parcel of real estate to a named person. When the Will does not contain such a provision or when a decedent dies intestate without a Will, the real property is part of the general estate. In most of these situations, the property is typically sold to provide for the payment of estate obligations such as an outstanding mortgage or the disposition of funds to a number of estate beneficiaries. The New York Probate Lawyer Blog contains many articles concerning estate administration.

The sale and closing of real estate by an executor or administrator is usually comparable to the process when a sales transaction is entered into among living individuals. However, there are a number of important aspects regarding estate closings that should be taken into consideration. Here are a few important items: