New York Probate Lawyer Blog

July 3, 2019

The Importance Of Clarity When Creating New York Estate Planning Documents

Estate Planning in New York can include the creation of a number of different papers such as a Last Will and Testament and Living Trust. Also, a person may prepare a Durable Power of Attorney, Living Will and a Health Care Proxy.

At the outset of the drafting of these papers, it is important for the creator to fully ascertain the nature of his assets and the manner in which title to them is held. Also, the creator should carefully consider his intentions so that decisions can be made regarding the dispositions to be contained in the documents. The New York Probate Lawyer Blog has discussed these matters in earlier postings.

The creator’s goal is to clearly and explicitly set forth his intentions and desires regarding his assets and his beneficiaries. A Will or Trust may contain specific gifts of a designated amount of money. There may be dispositions that provide for a beneficiary to receive a certain percentage of an estate or fund. Percentages are a good way to dispose of assets since it may be difficult to determine a person’s exact monetary estate at death which may not occur for many years after the estate planning papers are prepared.

June 26, 2019

Information Concerning The Collection Of Estate Property

by Jules M. Haas

The settlement of a decedent’s estate involves numerous activities. When a person is appointed as the Administrator or Executor of an estate, one of the most important fiduciary duties is to locate and collect the assets that were owned by the decedent. In some estates this task can be uncomplicated. If the decedent owned bank accounts, real estate or funds in a financial institution which the Executor or Administrator was aware of, the various forms and transfer papers can be prepared to facilitate the liquidation and collection of the assets.

However, there are many estates where the identification and collection of estate assets is not so clear or simple. There may be many difference issues that can delay or prevent recovery. To begin with, it may be difficult to locate or identify estate property. The decedent may have kept poor or confusing records. Also, some assets may be held in on-line accounts or in the name of corporations or other entities in which the decedent had an interest.

Additionally, even where assets can be located, there may be disputes with third parties regarding ownership. The New York Probate Lawyer Blog has posted a number of articles regarding the recovery of a decedent’s assets.

June 19, 2019

Information Regarding Surety Bonds For An Executor Or Administrator

by Jules M. Haas

The initial steps that are typically taken with regard to estate settlement concern the appointment of a fiduciary. The fiduciary can be an executor when there is a Last Will and Testament or an Administrator when a person dies intestate.

In order to be appointed by the Surrogate’s Court as a fiduciary a person must meet certain qualifications. Surrogate’s Court Procedure Act (SCPA) section 707 entitled “Eligibility to receive letters” provides basic criteria for a fiduciary. This statute states, in part, that a person is ineligible to receive letters if they are an infant, incompetant or a non-domiciliary alien. Also, a felon is ineligible. The letters that are referred to include Letters Testamentary, Letters of Administration and Letters of Trusteeship. There is an expansive definition of “Letters” in SCPA section 103 (34).

While many individuals may be eligible to receive Letters and be appointed as a fiduciary, there may be additional qualifications that must be met to complete the appointment. SCPA section 708 entitled “Qualification of fiduciaries” provides among other matters, that the appointee obtain a “bond” that may be required by the Court or under the law. The New York Probate Lawyer Blog has discussed the issue of Surety Bonds in earlier posts. There may be a requirement by the Court to obtain a Letters of Administration Bond. This is very common.

June 12, 2019

A New York Guardianship Can Be Terminated

by Jules M. Haas

Article 81 of the New York Mental Hygiene Law (MHL) sets forth the rules and procedures for the appointment of Guardians for an incapacitated person. The statute’s title is “Proceedings For Appointment of a Guardian For Personal Needs or Property Management”.

The main focus of the statute is to protect individuals who are incapacitated. Functionality is important to the Court in making its determination. Whether a person can engage in activities of daily living such as personal hygiene, and handling routine financial matters is scrutinized by the Court.

In the typical Guardianship case a petition is filed with the Court which details the reasons upon which a Guardian for personal needs or property management should be appointed.

June 5, 2019

Why Having A Will Is Important When A Decedent Has Non-Marital Children

by Jules M. Haas

The preparation and execution of a Last Will and Testament is always an important part of estate planning. A Will allows a testator to specifically provide for the disposition of assets to the individuals he wants to benefit. A testator’s intentions can be clearly set forth. The New York Probate Lawyer Blog has discussed the benefits and specifics regarding planning an estate in many prior posts.

It is particularly essential to create a Will when a decedent is survived by a non-marital child or children. When a person dies intestate or without a Will his estate is inherited by his distributees (next of kin). In a situation when there are children born outside of the marriage, the issue of kinship can get complicated. Estates, Powers and Trusts Law section 4-1.2 entitled “Inheritance by non-marital children”, sets forth the rules to be followed in these cases. The statute provides that a child born out of wedlock is the mother’s legitimate child, so that he and his offspring can inherit from her.

However, with regard to non-martial children of a father, such children can only inherit if they prove their kinship in a number of alternative ways. One way is if there has been a determination of paternity. Another possible form of proof is by a blood genetic marker test. Also, paternity may be shown by clear and convincing evidence that the father openly and notoriously acknowledged that the child was his.

May 29, 2019

An Important Part of Estate Planning In New York Is To Understand Property Ownership

by Jules M. Haas

Estate Planning in New York involves a number of items to be reviewed. Most individuals initially approach planning by determining how their estate is going to be distributed. Thus, decisions are made as to various bequests that are to be provided in a Last Will. A simple bequest may be a specific dollar amount, say $5,000, to be given to a named individual. There may also be a devise of a certain interest in real estate to a designated individual. Other types of dispositions may include creating a trust for a minor child or a Supplemental Needs Trust for a person under a disability. Also, there can be residuary dispositions to individuals or even charities whereby the balance of an estate is disposed of.

However, before the dispositions in a Will can be determined it is imperative to determine which assets are to pass under a Will as part of the probate estate. The New York Probate Lawyer Blog has published many articles concerning estate planning and property ownership. If an asset passes by operation of law, such as a joint bank account, or the asset has a beneficiary designation such as life insurance, then the asset is not controlled by the Last Will. As a result, there may not be sufficient assets passing under a Will to satisfy the various bequests and dispositions set forth in the Will terms.

As can be imagined, it is very important to understand how assets are owned so a determination can be made as to how they are to be disposed of at death. This issue was recently shown in a recent Manhattan estate case decided by New York Surrogate Rita Mella on May 23, 2019, entitled in Matter of Estate of Watson. This case involved a cooperative apartment owned by two individuals, Watson and Vicic, life partners. They died within a year of each other and a dispute arose between their estates as to the ownership of the cooperative and entitlement to the net sales proceeds. Watson died intestate without a Will and Vicic died testate with a Will.

May 22, 2019

Did You Know That New York Will Contests Have Limited Discovery Periods

by Jules M. Haas

Contesting a Will in New York is a complicated matter. There are a number of Statutory and Court prescribed rules that control these proceedings. The New York Probate Lawyer Blog has published numerous articles concerning Will Contests.

When someone is challenging the validity of a Will, essentially they are asserting that a basic requirement of an enforceable Will is lacking. Many references have been provided in this Blog to Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”, which sets forth the requirements for executing a Will. This statute mandates that there be at least two (2) attesting witnesses and that the Will be signed at the end of the document. One of the main Will Objections that is typically interposed is that the document was not properly executed. Cases abound where there are issues created when the paper is not signed by the testator in the presence of a witness or the witnesses do not recall whether the testator identified the paper as a Will.

Additional grounds for Objections to a Will include undue influence, fraud, lack of testamentary capacity and coercion. Sometimes forgery is alleged. Whatever the reasons are for claiming the Will is invalid, it is important to recognize that most Will Contest cases are determined based upon the information obtained during the document and deposition discovery phase of the case. During discovery the attesting witnesses and the attorney who drafted the Will and supervised its execution are required to give pre-trial testimony and turn over relevant documents.

May 15, 2019

Did You Know That A Person May Be Presumed Dead After A Three Year Absence

by Jules M. Haas

New York estate settlement involves many different types of rules and statutes. When a person dies the first question to be asked is whether the decedent had a Last Will and Testament or whether he died intestate. Once this fundamental issue is established either a probate petition or a petition for Letters of Administration can be filed with the Surrogate’s Court.

The New York Probate Lawyer Blog has published numerous articles concerning the need to provide the Court with all the names and addresses of a decedent’s next of kin. It is not uncommon for kinship information to be missing or difficult to obtain. Sometimes the services of a professional genealogist are needed to track down missing heirs. Also, the Surrogate’s Court may require that a kinship hearing be held to determine the status of individuals claiming to be a decedent’s distributees

While finding lost heirs is important, there are situations when determining the status of a possible decedent arises. The problem is showing whether this person is alive but just avoiding contact, or whether, in fact, the person is deceased. During this period of uncertainty, the missing individual’s affairs and assets are in limbo and not being attended to.

May 8, 2019

A New York No Contest Clause Cannot Prevent Inquiry Regarding a Trustee’s Misconduct

by Jules M. Haas

There are many different types of provisions that can be written in a Last Will and Testament. The most common terms include bequests to named beneficiaries and other clauses that provide for the disposition of assets. Also, the Will should name Executors and Trustees as well as proposed Guardians if minors are possible beneficiaries in an estate plan.

One of the more common provisions that is found in a Will is known as a “No-Contest” clause. This language is also referred to as an “In Terrorem” clause. The Estates, Powers and Trusts law provides the rules concerning this type of language in section 3-3.5 entitled “Conditions qualifying dispositions; conditions against contest; limitations thereon”. Essentially, this direction in a Will sets forth that any beneficiary who may contest the Will is to lose all rights to receive any benefits provided in the Will. Thus, if a person were to receive a $1,000.00 bequest in the Will but unsuccessfully challenges the validity of the document, he would forefeit his right to receive the $1,000.00. No-Contest clauses can be the source of estate litigation in the Surrogate’s Court.

The statute allows some exceptions which include discovery under Surrogate’s Court Procedure Act section 1404. Additionally, the prohibition does not apply to an infant or incompetent.

May 1, 2019

The Importance of Safeguarding The Original of a New York Last Will

by Jules M. Haas

Estate planning in New York is important. The creation of a Last Will and Testament and other documents such as a Living Trust, Health Care Proxy, Living will and a Power of Attorney, allows a person to control the disposition of assets and provide directions regarding personal decision-making.

It requires a lot of time and effort to create and finalize these papers. Assets must be reviewed as well as beneficiary designations and property dispositions. Alternate dispositions need to be considered in the event primary beneficiaries pre-decease a testator. The selection of fiduciaries such as Executors and Trustees, and their possible successors, need to be considered. Finally, all the documents that need to be signed must be reviewed and properly executed. Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides strict rules regarding the execution of Wills. The New York Probate Lawyer Blog has published numerous articles regarding the execution of Wills and Will Contests.

Once the above papers are signed it is also important to be certain that the original documents are maintained in a secure location. The various ways to keep these papers include a safe at home or in a secure filing cabinet or on file with an attorney. Sometimes the papers can be placed in a safe-deposit box although this can present problems after death since access may be restricted without a Court Order.