New York Probate Lawyer Blog

October 2, 2019

Helpful Information Concerning The Appointment Of A New York Guardian For Incapacity

The statues concerning the appointment of a New York Guardian for personal needs or property management are located in Article 81 of the Mental Hygiene Law (MHL). In order to have a Guardian appointed MHL 81.02 requires that the alleged incapacitated person either agree to the appointment or that the person be found to be incapacitated.

The New York Probate Lawyer Blog has posted many articles concerning the appointment process for Guardians and other aspects of Guardianship. Briefly, there is the requirement that a petition be filed with the Court and that proper notice be given to interested parties. An alleged incapacitated person has the right to oppose the imposition of a Guardianship and also the selection of the person appointed. In these hearings the Court will focus on an individual’s functional limitations with regard to engaging in activities of daily living.

One interesting section of Article 81 is MHL 81.29 entitled “Effect of the appointment on the incapacitated person”. This section is important since a person who is found to be incapacitated retains certain civil rights. Also, there may be aspects of the person’s pre-appointment actions which may need to be modified if they were tainted by the incapacity.

September 25, 2019

Interesting Information About A New York Preliminary Executor

by Jules M. Haas

There is general agreement that it is important to prepare a New York Estate Plan. The documents that may be considered in planning include a Last Will and Testament, Health Care Proxy, Power of Attorney, Living Will and Revocable Trust. Some of these papers are referred to as advance directives.

When a person prepares a Last Will, the document is comprised of many different provisions. There are dispositions of a person’s assets which may be comprised of specified assets or bequests. Other dispositions may be in more general terms such as the disposition of the residuary estate.

Another very important part of a Will is the nomination or designation of fiduciaries such as Executors and Trustees.

September 18, 2019

Important Information Concerning The Appointment Of An Estate Administrator

by Jules M. Haas

When a person dies without a Last Will and Testament he is known to have died intestate. In these cases the person’s distributees or next of kin have the statutory right to inherit the estate assets. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides the list of individuals who are entitled to inherit the estate. The New York Probate Lawyer Blog contains numerous articles discussing intestate estates.

Before the estate can be settled an administrator of the estate must be appointed. Surrogate’s Court Procedure Act (SCPA) section 1001. entitled “Order of priority for granting letters of administration” designates the distributees who have the priority to be appointed as estate Administrator. Essentially, the priority under SCPA 1001 follows the inheritance rights under

EPTL 4-1.1.

September 11, 2019

Did You Know That A Parent Can Be Disqualified To Inherit From A Child

by Jules M. Haas

When a person dies without a Last Will and Testament he is said to have died intestate. In these cases the decedent’s estate is distributed pursuant to the laws of intestacy. Estates, Powers and Trusts Law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, provides the list of persons who are entitled to receive a share of the intestate estate. The New York Probate Lawyer Blog contains many articles discussing estate administration.

If kinship is not difficult to determine, the priority list of beneficiaries under EPTL 4-1.1 controls estate distribution. When a person dies without a spouse or children, his distributees are his parents. However, under EPTL 4-1.4 entitled “Disqualification of parent to take intestate share”, a parent can be prevented from receiving his share of a decedent’s estate if he either fails or refuses to provide for a child or abandons the child. Thus, if the parent does not support a child he can lose his inheritance. An abandonment qualifies for the same result.

While instances of such disqualifications are not common, there are cases where the parent forfeits his rights. In a Bronx estate case entitled Estate of Umezurike decided on September 9, 2019 by Bronx Surrogate Nelida Malave-Gonzalez, a father was found to have been disqualified from receiving his share of proceeds from a wrongful death action when his son died.

September 4, 2019

Important Considerations Regarding The Appointment of A New York Administrator

by Jules M. Haas

When a person creates an estate plan he typically prepares a Last Will and Testament. A Will contains a provision that nominates an Executor. Thus, in most probate proceedings the selection of the estate fiduciary is not complicated and is controlled by the appointment made by a testator in a Will.

This situation is much different when a person dies intestate – without a Will. In these cases where the Court is required to appoint an estate Administrator, direction must be obtained from Surrogate’s Court Procedure Act (SCPA) section 1001 entitled “Order of priority for granting letters of administration”.

Pursuant to this statute, the persons entitled to be appointed as Administrator are given priority based upon family relationship. A spouse of the decedent has first priority, followed by children, grandchildren and then father and mother, brothers and sisters. A frequent issue that arises in these cases is that there may be multiple individuals in a category who want to act as Administrator and who disapprove of the other applicants. Since each of these persons has an equal statutory right to be appointed, it is often up to the Court to make a determination as to the appropriate appointee. This may lead to Estate Litigation in the Surrogate’s Court.

August 28, 2019

New York Will Contests Require Pre-Objection SCPA Witness Testimony

by Jules M. Haas

When a Last Will and Testament is filed with the Surrogate’s Court for probate, a number of procedural steps must be followed. The Will itself is accompanied by a Probate Petition. The Petition contains essential information regarding the decedent, the date of death, the names of the attesting witnesses, the date of the Will and the estimated value of the probate estate.

Another very important part of the Probate Petition is the listing of names and addresses of all of the individuals and entities that are interested in the estate. These include the beneficiaries, the named executors and trustees and the decedent’s next of kin (“distributees”). The distributees are individuals who have a right to object to the Will. If the Will is found to be invalid, the estate would be distributed to the next of kin according to the laws of intestacy contained in Estates, Powers and Trusts Law section 4-1.1. The New York Probate Lawyer Blog has provided many articles concerning the probate process and Will Contests.

If a distributee wants to pursue estate litigation and a possible Contested Will proceeding, the procedures contained in Surrogate’s Court Procedure Act (SCPA) section 1404 entitled “Witnesses to be examined; proof required” are followed.

August 21, 2019

Did You Know That A Guardianship Proceeding May Not Be Needed If There Are Advance Directives

by Jules M. Haas

Article 81 of the New York Mental Hygiene Law (“MHL”) provides the statutory provisions covering the appointment of a Guardian. A Guardian may be appointed for personal needs and also for property management.

The procedure set forth in the statute to commence a Guardianship proceeding is straight forward. MHL section 81.08 states that there should be a petition that needs to include information regarding the alleged incapacitated person (“AIP”) such as name age and address and the AIP’s ability to engage in activities of daily living.

In order for the Court to appoint a Guardian it must find that the AIP is incapacitated or agrees to the appointment. One interesting aspect of MHL section 81.02, which is entitled “Power to appoint a guardian of the person and/or property; standard for appointment”, is that the Court is required to consider whether the AIP has other “available resources” that may be used rather than having a Guardian appointed. Such resources are described in MHL section 81.03(e) and include nurses, aides and powers of attorney and trusts.

August 14, 2019

An Estate Account Provides Information for Estate Settlement

by Jules M. Haas

The administration of a New York estate typically has three phases. At the outset, a fiduciary needs to be appointed such as an Executor or an Administrator. Once there is someone in an official capacity to handle the decedent’s affairs, the process of locating and collecting assets can begin. Also, estate debts and obligations must be determined and resolved. Both of the above phases can cause delays in finalizing the estate due to such problems as Will Contests or disputes regarding the ownership of assets.

The final part of the process in handling a decedent’s affairs is the accounting phase. All fiduciaries, whether an Administrator or Executor or Trustee, must provide an accounting to the estate beneficiaries. The New York Probate Lawyer Blog contains many articles discussing the various issues involved with administering an estate.

An estate accounting contains many schedules which provide detailed information regarding the amounts received and expended by the fiduciary. The beneficiaries have an opportunity to review the accounting and file Objections if they feel there has been a breach of fiduciary duty. The Surrogate’s Court will scrutinize the accounting for accuracy and proper reporting. Recently in a Bronx estate, the Court found that the Administrator did not include the value of the decedent’s cooperative apartment. The cased was entitled Estate of Scott and was decided by Bronx Surrogate Neilda Malave-Gonzalez, on August 2, 2019. In Scott, the Court determined that there was insufficient proof that the decedent’s son was entitled to succeed to the ownership of the apartment and exclude its value from the accounting.

August 7, 2019

It Is Interesting To Know That To Revoke A New York Will Statutory Formalities Must Be Followed

by Jules M. Haas

There are many requirements in New York estate law concerning the proper execution of a Last Will and Testament. The basic statute setting forth these rules is Estates, Powers and Trusts Law (“EPTL”) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”. The validity of a Will requires that a testator sign the Will at the end and that there be two attesting witnesses.

When the statutory formalities to execute a Will are not adhered to there may be estate litigation when the document is presented for probate. An interested party may file Objections to the Will that result in a Will Contest. The New York Probate Lawyer Blog contains many articles concerning estate administration and the probating of Wills.

A Will can be changed or revised as many times as a person desires to do so. However, there are also certain requirements that must followed in order to accomplish a successful revocation. EPTL section 3-4.1 entitled “Revocation of Wills; effect on codicils” contain rules regarding revocation. The statute says that a Will can be revoked or changed by executing another Will or by certain acts of mutilation or obliteration.

July 31, 2019

Did You Know That Objections To An Executor’s Accounting Must Be Sufficiently Particular

by Jules M. Haas

In Surrogate’s Court proceedings there are many instances where a party can file Objections. Estate Litigation usually involves matters that are commenced with a Petition. For example, in Probate Cases, the probate process is started by filing a Petition for Probate and Letters Testamentary. Similarly, when a decedent dies without a Last Will, a petition for Letters of Administration is filed to begin the process to administer an intestate estate.

Another example of a Surrogate’s Court petition is one to settle or approve the accounting of an Executor or Administrator. When these various types of petitions are filed with the Court official notice, usually in the form of a Citation, is given to the parties who have an interest in the outcome.

These parties usually have a right to file Objections to the various petitions. Thus, there can be Objections to Probate which lead to a Will Contest. Also, it may be necessary to Object to the matters set forth in an accounting by an Administrator or Executor.