New York Probate Lawyer Blog

May 15, 2019

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

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.

April 24, 2019

Did You Know Estate Settlement May Require A Beneficiary to Reimburse Estate Funds

by Jules M. Haas

The administration of a New York estate typically is comprised of three stages. The first stage involves the appointment of an estate fiduciary such as an Administrator when the decedent dies intestate or an Executor when there is a Last Will and Testament. In most cases this stage is uneventful and after a complete petition and supporting papers are filed with the Court the fiduciary is appointed. Sometimes, there is estate litigation concerning a contested Will or the appropriate person to be appointed as Administrator. Kinships may also be an issue.

Stage two of an estate involves the collection of assets and the payment or settlement of claims and estate obligations. Surrogate’s Court litigation may also be needed here if there are disputed issues regarding estate liabilities and the ownership of assets. An estate executor or administrator has a fiduciary obligation to collect and protect the estate assets. Creditor’s claims and tax issues can complicate the finalization of the decedent’s affairs.

In the third and final stage, the estate fiduciary is ready to distribute the net assets to the beneficiaries. The fiduciary usually prepares an Accounting. This document contains detailed information as to all of the estate assets and income collected as well as all of the expenses and other items paid from the estate. The accounting will set forth various unpaid items to be paid such as fiduciary commissions and attorneys or accountant fees. It may also contain proposals for the manner in which the net estate is to be distributed by providing a final calculation of each beneficiary’s interest.

April 17, 2019

What Is a Preliminary Executor and Why Should The Court Appoint One

by Jules M. Haas

When a person engages in estate planning and preparing a Last Will and Testament, numerous items of information and directions are set forth in a Will. Along with providing provisions naming beneficiaries and describing distributions of assets, a testator needs to designate fiduciaries such as Executors and Trustees.

The selection of Executors is a very important aspect of planning an estate since such designees are to be responsible for handling all estate affairs and settling the estate. Typically, the testator nominates a primary executor as well as successor Executors. The New York Probate Lawyer Blog has published many articles concerning the selection of fiduciaries and other aspects of estate administration.

The Executor of a Will is appointed when the Will is admitted to probate. At that time Letters Testamentary are issued to the Executor. However, there are occasions when the probate of the Will may be delayed. Such delays may be due to a Will Contest or the search for next of kin. Also, there may be a need to locate the original signed copy of a Will or an attesting witness who is needed to sign an affidavit.

April 10, 2019

The Selection of New York Executors and Trustees Is Important In Estate Planning

by Jules M. Haas

Planning an Estate in New York involves many considerations. At the outset of the process, particular care must be taken to understand the nature of the assets to be covered by the estate plan. Assets that are owned in an individual’s name alone would be subject to the terms of a Last Will. Such assets could also be transferred into a Grantor or Living Trust. On the other hand, assets that are owned jointly or which have designated beneficiaries would pass automatically on death to the survivor or beneficiary. Thus, these items may not be controlled by a Will or Trust. The New York Probate Lawyer Blog has discussed the importance of identifying ownership rights in property in numerous articles.

Another critical consideration in any type of plan is the selection of fiduciaries to manage and administer the fund that comprises an estate or trust.

Most often, the selection of an Executor or Trustee is an easy decision. A close family member such as a spouse or child is typically the first person to be designated. However, there are always considerations as to whether such persons have the appropriate qualifications to serve in such capacity. There may be health or medical issues that might interfere with a person’s ability to act as a fiduciary. Also, issues such as a conflict of interest may arise particularly where the proposed fiduciary may have some direct or indirect interest in how the estate or trust is administered or invested.

April 3, 2019

Learn About Limitations To Discovery In New York Will Contests

by Jules M. Haas

The filing of a Will Contest with the Surrogate’s Court brings to mind melodramatic stories of family intrigue and deception that are played out in movies, novels and other media outlets. In reality, Contests regarding a Will in New York are rather common occurrences that are subject to strict statutory and procedural guidelines.

When a person dies and leaves a Will, the document must be offered for probate. This means that the validity of the Will is not achieved until the Surrogate admits the Will to probate. A probate proceeding involves the notification of the decedent’s next of kin and other interested parties who are the ones who have the right to challenge a Will. The New York Probate Lawyer Blog has published numerous articles about Wills and probate. The basic grounds upon which a Will is challenged are lack of due execution, lack of testamentary capacity, undue influence and fraud. Sometimes an allegation may be made that a Will has a forged signature.

The Objectants to a Will, as well as the proponents, engage in a lengthy period of discovery that is meant to allow the parties to ferret out facts to support their positions. This discovery process includes deposition testimony of various witnesses including the attesting witnesses to the Will and the attorney who drafted the Will. Also, various documents can be obtained and reviewed including the decedent’s medical and financial records.

March 27, 2019

What Happens When A Guardian Or Estate Fiduciary Needs To Safeguard An Apartment

by Jules M. Haas

An Article 81 Guardian appointed to safeguard the person and property of an incapacitated person may need to deal with an assortment of issues. Similar responsibilities are given to the Executors and Administrators of an estate.

In particular, the property interests of both an incapacitated person and a decedent’s estate may involve an apartment where the person was residing. When a person dies, if the apartment was not owned in nature of a co-op or condominium unit, the estate fiduciary must arrange to obtain access to the apartment. The need for access can include securing valuable articles of tangible personal property, locating asset information such as tax returns, bank account statements and brokerage and retirement fund information. Additionally, the apartment will need to be cleaned out at some point and returned to the possession of the landlord. Of course, if there are other family members living in the apartment who refuse to leave or provide access or who have claims to continue to occupy the premises in the nature of succession rights, then the fiduciary must grapple with these issues. The New York Probate Lawyer Blog has published numerous articles concerning problems in obtaining possession of a decedent’s real property.

The Guardian for an incapacitated person may face similar issues particularly if the ward is now residing in a nursing home or other location. An issue may arise as to whether the incapacitated person intends to return to the community to live in the apartment. A landlord may want the ward evicted, particularly if the apartment is rent regulated.

March 20, 2019

Did You Know That New York Executors Or Administrators May Have Access To Digital Assets

by Jules M. Haas

The administration of a New York estate requires that the decedent’s assets be identified and collected. In most cases the marshaling of estate assets is not complicated. An Executor or Administrator often collects funds from bank accounts, brokerage accounts, retirement accounts and life insurance. Typically, there are forms to be completed and the asset is paid to the fiduciary.

However, today, many assets and the information regarding assets, along with a decedent’s affairs, only exists or is stored in a digital format. Unlike traditional items belonging to a decedent that can be discovered by looking through a decedent’s papers or mail, these digital assets are only found in electronic form. As a result, an estate representative is faced with the difficult task of discovering and then accessing this material. It is even more daunting to obtain such information when pass-words are unknown and the custodian of the information, such as an internet company like Google, Facebook, Apple or other on-line services, maintain strict privacy policies.

Such was the problem in a Westchester Estate that was faced by parents when their 24 year old son died unexpectantly. After the son’s death, without a Will, the parents were appointed as Administrators of his estate. They attempted to obtain formation from Apple that was contained in their son’s iPhone. Unfortunately, the parents did not have the passcode to access any of the data. After contacting Apple, they were advised among other requirements, that a Court Order would be needed to obtain the information, some of which may have been stored in iCloud back-up.

March 6, 2019

Discovering Information Regarding A Decedent’s New York Lifetime Trust

by Jules M. Haas

There are a number of different ways in which a person can dispose of assets after death. Creating a Last Will and Testament is a traditional vehicle for a person to transfer his estate to estate beneficiaries. A Will controls all assets that are owned by a decedent in his individual name at the time of death. This document can provide details regarding the amounts and the manner of bequests.

Another possible estate planning document is a Living Trust or Revocable Trust. This trust is created during a person’s lifetime and assets are transferred into the trust during the life of the Grantor. When a person dies with a Revocable Trust, the successor or remaining trustee distributes or holds the trust fund in accordance with the terms of the trust. However, unlike a Will, which needs to be filed with the Court for probate, there is no public record of the trust. As a result, potential beneficiaries of the decedent’s estate cannot immediately see whether they were named in the trust. Also, it is difficult to determine whether the trust was created or funded under circumstances that may involve undue influence or other wrongful acts. The New York Probate Lawyer Blog has published numerous articles concerning Living or Revocable Trusts.

A person who has questions regarding the validity of a lifetime trust can commence litigation to void the trust. There are possible proceedings whereby an estate fiduciary, such as executor or administrator, can investigate the circumstances under which the trust was put into place. It is not uncommon to see trust litigation especially when the terms of the trust document are different from a Last Will that was previously signed by the decedent.