New York Probate Lawyer Blog

August 27, 2024

The Appointment of a Preliminary Executor Should Reflect a Decedent’s Intent

The function of estate planning in New York is to provide documents which reflect the intentions of the creator. Estate planning is a broad topic which in general may encompass many types of objectives. In its purest form, an estate plan consists of a Last Will and Testament. In addition, planning may also result in the establishment of a Revocable or Living Trust. This document contains similar post-death provisions but is implemented with the goal to avoid the probate process. A revocable or living trust also usually contains pre-death directions for asset management in the event of circumstances such as the creator’s incapacity.

Other aspects of planning may include advance directive papers such as a Health Care Proxy, Living Will and Durable Power of Attorney. In certain instances, a Medicaid plan may be appropriate which might include pre-death transfer of assets.

The important point is that all planning allows a person to memorialize his intensions regarding his assets and personal affairs, and the selection of executors, trustees, and agents which may be named and nominated in the papers. Courts are very sensitive to a person’s selection of executors and trustees. In particular, the nomination of an executor in a Will may take on paramount importance in many cases where the appointment of a preliminary executor is needed for immediate estate administration.

August 14, 2024

Landlord-Tenant Eviction Proceedings Require the Appointment of an Estate Representative

by Jules M. Haas

The death of an individual creates many diverse issues. As discussed in numerous posts in the New York Probate Lawyer Blog, an initial determination must be made as to whether a decedent died with a Last Will and Testament or was intestate. The existence of a Will requires the commencement of a probate proceeding in the Surrogate’s Court. This proceeding is typically filed by the nominated Executor. The relief sought is to have the Will validated by the Court and Letters Testamentary issued to the Executor. If there are delays expected in probating a Will, an application can be made for the appointment of a Preliminary Executor.

When there is no Will, a petition should be filed to obtain Letters of Administration. Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” provides the priority of persons entitled to be appointed as Administrator. Estates Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides which heirs are entitled to inherit the estate.

Of course, many issues arise concerning a decedent and an estate. A duly appointed Executor or Administrator is essential in order to solve these matters and settle the estate. One area which is a very common source of problems relates to a decedent’s residence. If a decedent was a tenant in a property, the immediate question arises as to what becomes of the decedent’s apartment. In many metropolitan areas, such as New York City, there are a multitude of tenancy situations. A decedent may have had a lease which is subject to rent regulations such as rent stabilization or rent control. There are situations when a tenancy is not subject to any rent controls or when occupancy of an apartment is not subject to any lease at all. Particularly when an apartment is subject to rent regulation, a landlord will be eager, and many times act aggressively, to obtain control over the apartment in the hope of obtaining a higher rent from a new tenant after the decedent’s vacancy.

July 31, 2024

The Surrogate’s Court Will Act in the Best Interests of an Estate to Appoint Administrators

by Jules M. Haas

One of the primary reasons for implementing an estate plan is to afford a person the opportunity to select or nominate estate fiduciaries. When one thinks about planning an estate, the initial considerations regarding the creation of a Last Will and Testament or a Revocable Trust are the beneficial provisions concerning the disposition of assets. Of course, while selecting beneficiaries and alternate beneficiaries, as well as the assets or shares they are to receive, is a prominent aspect of any plan; it is also essential that sufficient consideration be given to the selection of fiduciaries. Fiduciaries may be executors, trustees or guardians for minors.

The nomination of a fiduciary is important since the creator of the document is placing his trust in a named person or persons to administer an estate or trust and to put into effect the creator’s intentions. Executors and trustees may need to serve for long periods of time and may need to confront and resolve many complex issues affecting an estate or trust ranging from taxes, creditors’ claims, and other sorts of litigation.

When a decedent does not leave a Will, the selection of an intestate estate administrator is left to the determination of the Surrogate’s Court by application of the estate laws. In particular, Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” provides a list of persons who have priority in being appointed as the estate administrator. The New York Probate Lawyer Blog has published numerous articles concerning the appointment of estate administrators and estate settlement.

July 19, 2024

Administration of a New York Estate May Include Digital Assets

by Jules M. Haas

After a person dies, it may be necessary to administer his estate. Of course, the creation of comprehensive estate planning can facilitate post-death matters. A complete estate plan may include a Last Will and Testament, Living Will, Health Care Proxy, Durable Power of Attorney, and a Living Trust. The New York Probate Lawyer Blog contains many articles concerning estate planning and estate settlement.

A decedent’s assets may be comprised of items which are held in a decedent’s name and which pass under a Will. Other assets such as life insurance or retirement accounts can have designated beneficiaries. Still other assets such as joint accounts, may pass to a surviving owner automatically upon death. In all of these situations, it will be necessary for an executor or administrator or beneficiary to locate and ascertain the assets in which a decedent held an interest at the time of death.

Finalizing and collecting a decedent’s assets may, at times, be very difficult. If a survivor or a fiduciary has access to a decedent’s financial records, such as bank or brokerage statements, the job to determine assets may be simplified. Additionally, asset information may be obtained by examining a decedent’s tax returns. As to real estate, there may be internet listings or access to the locally filed real estate records. In New York City, real estate records can be accessed through the ACRIS (Automated City Register Information System) online search system. Mail delivered to a decedent’s residence may also be a source for asset information.

July 2, 2024

Objections to a Fiduciary Accounting Cannot Be Conclusory

by Jules M. Haas

The settlement of a New York estate is comprised of a number of stages. At the outset, a determination must be made as to whether a decedent had a Last Will and Testament or died intestate. This is important since the procedures to obtain Letters Testamentary in a probate proceeding, or Letters of Administration in an intestate administration proceeding, are different. While this initial process appears uncomplicated, there are many cases where the determination as to whether a decedent left a Last Will to be probated is unclear.

First and foremost, a search needs to be performed to locate the original Will. It may be that the document, if there is one, was retained by a decedent at home or with an attorney. Sometimes, the only paper to be found is a copy of a Will. This presents problems since it is very difficult to probate a copy of a Will. Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” contains specific rules regarding the probate of Wills which are lost.

Assuming that the issue regarding the appointment of an executor or administrator is resolved, the actual day-to-day management of the estate needs to be accomplished. In this regard, assets need to be identified and collected. Also, estate debts, claims and taxes must be dealt with and satisfied. Depending upon the estate, some assets may present complicated issues, particularly where a decedent had various business or other valuable interests. Valuation issues may arise if the estate is subject to Federal or New York State estate tax. The New York Probate Lawyer Blog has published numerous articles concerning estate settlement.

June 14, 2024

New York Will Contests – The Basic Contentions

by Jules M. Haas

It is quite common that when a Last Will and Testament is filed with the Surrogate’s Court for probate, various members of a decedent’s family view the Will provisions to be objectionable. This feeling of rejection may be based upon a perception that a decedent was somehow coerced into signing a Will or did not have the appropriate cognitive ability to understand what he was signing. Or perhaps, a decedent promised to make a bequest which does not appear in the document.

While these various reactions may have some general validity, the actual and formal process to contest a Will is very complicated and often difficult to traverse. The New York Probate Lawyer Blog has published numerous articles concerning Contested Wills and Surrogate’s Court litigation.

When considering whether to object to a Will, the potential Objectant must have a right or legal standing to file Objections. Typically, an Objectant is a distributee or next of kin of a decedent who would receive a greater share of the estate or an intestate share if the Will is determined to be invalid. Assuming a person has standing, there are many hurdles to successfully invalidate a Will.

May 28, 2024

New York Guardianship – What Powers Does an Article 81 Guardian Possess

by Jules M. Haas

New York Guardianship proceedings are controlled by Article 81 of the Mental Hygiene Law (“MHL”) entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.” The New York Probate Lawyer Blog has published many articles concerning Guardianship.

The essence of appointing a Guardian concerns a determination that a person is incapacitated. Incapacity, contrary to its connotation that a person is completely incapable of handling personal needs or property matters, is really a case by case individual determination of abilities. The inquiry is to examine a person’s functional ability as it relates to handling activities of daily living. According to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment,” incapacity needs to be shown by clear and convincing evidence. There must be a determination that a person will likely suffer harm because they cannot provide for their needs and that the person cannot appreciate and understand the consequences of their disability.

In a typical case, a petition is filed with the Court. The Court then sets a date for a hearing. All close family members are given notice as well as other interested parties. The alleged incapacitated person usually has a Court-appointed attorney and the Court may appoint a Court Evaluator. The Evaluator reviews the case, interviews parties, and provides the Court with a report and recommendations.

May 15, 2024

Ownership Problems Arising from Real Estate in an Estate

by Jules M. Haas

The settlement of a New York estate can be very complex based upon a number of factors. To begin with, different rules apply where a decedent died with a Last Will and Testament as opposed to an intestate estate. In the case of a Will, the distribution of estate assets is controlled by the terms of the Will. In the case of intestacy, estate distribution is based upon the provisions of Estate, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.”

Also, where a Will exists, there is usually an executor appointed. An estate administrator is appointed where there is no Will. Both Executors and Administrators have essentially the same powers and authority although a Will may provide specific powers or directions to the estate fiduciary.

The New York Probate Lawyer Blog has published many articles concerning real estate and estates. A very common issue which arises is that an estate’s primary and most valuable asset is real estate. If there are multiple estate beneficiaries, the real estate may need to be sold in order to satisfy each of the beneficial shares. In many cases, the asset may be occupied by third party tenants or even relatives. As a result, the estate fiduciary may need to commence eviction or ejectment proceedings in order to obtain possession of the property before it can be sold.

April 30, 2024

Living Trusts May Involve Many Legal and Procedural Issues

by Jules M. Haas

A typical estate plan includes a number of commonly recognized documents. First and foremost is a Last Will and Testament. As discussed in many posts in the New York Probate Lawyer Blog, a Will controls the disposition of assets held in a decedent’s name alone. Thus, assets such as joint bank accounts or items which have designated beneficiaries such as retirement accounts and life insurance pass directly to the other named party. The terms of a Will do not control these assets. Therefore, any estate plan should include careful scrutiny as to the title of assets and whether named beneficiaries have been added.

When a person dies, his Will is filed with the Surrogate’s Court along with a petition for probate. When a Will is admitted to probate by the Court, the terms of the Will become effective.

It has become more popular recently to include the creation of a Living Trust as part of an estate plan. Living Trusts are also referred to as grantor or revocable trusts. The basic format of a Living Trust is that assets owned by a person in their names are presently transferred into the trust. Thus, real estate is placed in the name of the trustee of the trust as well as bank accounts and other items. The intention is to put a person’s assets into a Living Trust in order to avoid probate. When a person dies, the terms of the trust can be effectuated expeditiously without having to wait for the probate process to be conducted in the Surrogate’s Court. Also, the Living Trust can have provisions for the management of property if the grantor becomes ill or disabled.

April 16, 2024

Probating A New York Will – A Complex Process

by Jules M. Haas

A Last Will and Testament is a document meant to memorialize a person’s intentions regarding the disposition of his property after death. The various rules and statutes relating to the probate process are typically strictly adhered to by the Surrogate’s Court. This is because if there are any variations or discrepancies, a decedent is no longer around to explain what was intended. The Surrogate’s Court is the place where most Wills are filed to commence probate.

The New York Probate Lawyer Blog has published many articles concerning the probate of a Will as well as other topics, such as intestate distribution and estate settlement. As many of these articles discuss, the process is commenced by filing a Petition for Probate with the Court and seeking the granting of Letters Testamentary. The Petition contains a fair amount of information, including the name and address of the petitioner, the decedent’s next of kin (“distributees”) and Will beneficiaries. Information is also provided regarding the date of the Will, the names of the Will attesting witnesses and the estimated value of the probate estate.

For the most part, the distributees have a right to challenge or contest a Will. If the document is determined to be invalid, and the decedent is found to have died without a Will, the estate is distributed to the intestate heirs.