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Very often the Surrogate’s Court requires that an Executor or Administrator post a bond as a condition to their appointment as a fiduciary. A Bond in the Surrogate’s Court is typically within the discretion of the Judge. Surrogate’s Court Procedure Act (SCPA) Section 710 entitled “Objections which require bond from fiduciary not otherwise required to file bond”, provides various directions as to the posting of a bond.

A bond is simply a form of insurance to protect the estate creditors and beneficiaries from possible estate loses. The New York Probate Lawyer Blog has discussed fiduciary bonds in earlier posts. When a person prepares a Last Will, one common provision is that the need to post a bond by the Executor is waived. On the other hand, in many intestacy administration cases, the Court requires that the Administrator post a bond as a condition to his appointment. Continue reading

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The execution of a Last Will in New York is controlled by Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”. Estate Lawyers are familiar with statutory requirements that a Will should be in writing and that there needs to be at least two attesting witnesses.

When a Will is offered for probate in the Surrogate’s Court it is necessary to notify the decedent’s distributees (next of kin). These individuals have the right to file Objections to the Will. Typically the distributees receive a Probate Citation which is like a Summons. The Citation provides a Court date on which the person receiving the Citation must appear in the Surrogate’s Court and advise the Court regarding his Objections to the Will. Continue reading

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When a person becomes incapacitated, Article 81 of the Mental Hygiene Law provides for the appointment of a property management Guardian and a Guardian for personal needs. New York City Guardianship Lawyers are familiar with the statutes regarding Guardians and the need to provide clear and convincing evidence to have a Guardian appointed. The New York Probate Lawyer Blog contains numerous articles regarding Guardianship.

Once a Guardian is appointed, it is important to understand the powers that a Guardian has available to handle the Incapacitated Person’s (“IP”) affairs.  MHL Section 81.29 entitled “Effect of the appointment on the incapacitated person” sets forth some interesting directions. One of the statutory provisions contained in paragraph (d) of Section 81.29 is that the Court cannot revoke or invalidate a Will or a Codicil that was made by an incapacitated person.  In effect, when a Will appears to be the subject of undue influence or other issues that may emanate from the circumstances of incapacity, the ordinary path to deal with such issues would be a Will Contest in the Surrogate’s Court after the IP dies. This often leaves many of these issues unresolved for years while the IP is still alive. Continue reading

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When a person dies without a Last Will he is deemed to have died intestate. In cases of intestacy there are numerous facts that must be considered in connection with the appointment of an estate administrator and the settlement of a decedent’s estate. The New York Probate Lawyer Blog has published many articles regarding intestate estates.

At the outset, information regarding the decedent’s next of kin or kinship must be determined. The identity of the decedent’s kinship is needed in order to select the proper person to petition the Surrogate’s Court for Letters of Administration. Kinship will also provide the identity of the persons who are entitled 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 priority for inheritance. The decedent’s spouse and children have first priority to inherit. Continue reading

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The appointment of a Guardian for the personal needs and property management of an incapacitated person is provided by Article 81 of the Mental Hygiene Law (MHL). There are many interesting aspects to Guardianship proceedings. MHL Section 81.02 requires that the Court needs to find clear and convincing evidence that a person is incapacitated.

There are many variations regarding the extent of incapacity of an Alleged Incapacitated Person (“AIP”). Some AIP’s require more assistance with activities of daily living than others. In other words, some AIP’s can function effectively to some extent and, therefore, do not need a Guardian to completely control their activities. Continue reading

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The rights of a surviving spouse have been safeguarded in various provisions of the New York Estate Law. For example, when a person dies without a Last Will his estate is distributed according to the laws of intestacy. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides that the intestate share of a surviving spouse takes priority even where there are surviving children. A surviving spouse receives the first $50,000.00 of the estate plus one-half of the balance.

The New York Probate Lawyer Blog has published many articles relating to the various rights that family members have when a person dies without a Last Will. The intestate administration of a decedent’s estate can be quite complicated especially when issues of kinship exist. Continue reading

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Article 81 of the New York Mental Hygiene Law (MHL) is entitled “Proceedings For Appointment of a Guardian for Personal Needs or Property Management”.   Under this statute, a Guardian can be appointed for a person who is found to be incapacitated.

A determination regarding incapacity must be based upon clear and convincing evidence (MHL § 81.02).   In most Guardianship cases, the Court will review the functionality of the alleged incapacitated person (AIP). This means that there will be an examination of the AIP’s ability to handle activities of daily living such as the ability to handle finances, shop, cook, take care of personal hygiene and other ordinary daily activities. Continue reading

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The estate fiduciary is responsible to collect and protect estate assets. These assets may be bank accounts, retirement funds or brokerage accounts. In many estates the most valuable estate is the decedent’s residence which can be a single family home or a cooperative apartment or a condominium unit.

The New York Probate Lawyer Blog has provided a number of articles discussing the problems that arise when a decedent’s property is occupied by third parties. These occupants can be relatives, friends or just tenants. However, the Executor or Administrator of an estate may need to have the property vacated so that it can be sold. Major disputes and estate litigation arises when the occupants refuse to vacate. Continue reading

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An estate in New York is administered by an Executor or Administrator. These Surrogate’s Court appointees have a fiduciary obligation to collect the decedent’s assets and also to resolve or pay all estate debts and obligations.

It is not always easy when a person dies for the estate fiduciary to determine the nature and extent of the decedent’s debts. There may be a period of time after death when the decedent’s mail and other information needs to be reviewed to see what credit cards, medical bills or mortgage payments are outstanding. The administrator or executor must determine and resolve all of these obligations before the estate can be settled and the net estate funds can be distributed to the estate beneficiaries. If the fiduciary distributes estate assets to beneficiaries before estate claims are resolved, the fiduciary may be personally liable for the payment of these items. Continue reading

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Most people prepare their estate plans and Last Wills and expect that the provisions and directions they set forth can be carried out after death. The rationale for planning an estate is to avoid intestacy which would leave to chance the manner in which an estate is to be distributed. As discussed in many articles in the New York Probate Lawyer Blog, when a person dies without a Will, the New York estate laws provide that the estate is distributed to the decedent’s next of kin. This result may not always reflect a testator’s intent.

When a Will is submitted to the Surrogate’s Court for probate, the estate laws and procedures require that official notice be provided to the decedent’s next of kin. This is because these individuals have a right to contest the Will. If a Will is invalidated, the decedent’s estate is distributed to the next of kin. Continue reading

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