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Estate planning in New York involves the preparation of a number of documents including a Last Will and Testament. It is not unusual that during the course of a lifetime a person prepares and executes a series of Wills.

It is a common practice that a Will should be updated periodically. There are many reasons for such updates. It may be that early versions of a Will contain trust and guardianship provisions for a person’s minor children. Once the children have grown older there would no need for these provisions. In this regard, a person’s testamentary plan and intentions may change over time. A testator can change the dispositive provision of his Will as many times as desired. Sometimes the individuals named as beneficiaries may predecease the testator or need to be eliminated due to personal preferences. Continue reading

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The gross estate of a decedent includes many different types of assets. There are assets such as bank accounts and real estate that were owned by the decedent in his name alone at the time of death. These assets would be subject to the control of an estate executor or administrator.

Other assets may pass outside of the administration estate by operation of law. For example, there may be items owned as joint tenants such as bank accounts or items such as life insurance where there is a designated beneficiary. In these cases the asset is owned immediately upon the decedent’s death by the joint owner or specified beneficiary. The New York Probate Lawyer Blog has posted many articles discussing the various types of estate assets and the ownership issues that can be involved. In particular, the ownership of joint assets by a decedent tends to result in estate litigation. This especially so where there are questions as to the validity concerning the creation of the joint account or the manner in which a joint tenant accessed the decedent’s funds prior to death. Since the joint asset passes outside of the estate administration, the decedent’s Will beneficiaries or heirs at law if the decedent died intestate, cannot receive a share of the joint asset value. Continue reading

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Last Wills are part of estate planning. The contents of the Will contains numerous provisions dealing with the distribution of estate assets. There can be pecuniary bequests which provide for a definite amount of money to be given to a beneficiary. There can also exist residuary provisions that direct the manner in which the balance of an estate is to be disposed of.

One of the most important provisions in a Will is the language that is concerned with the appointment of an Executor. The Executor is the person who is responsible for administering the probate estate. After a Will is admitted to probate, the Court issues letters testamentary to the nominated Executor. The nomination of an executor in a Will is essential. Continue reading

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There are a number of different types of papers and considerations that are involved in estate planning. It is important that the documents appear clearly and express a person’s directions and intentions. An estate plan can include a Last Will and a Living Trust. Also, advance directives such as a health care proxy, living will and power of attorney can be put into effect.

Planning documents often include the use of a trust. A trust can be created in a Last Will. This type of trust is a testamentary trust. When a Will is admitted to probate, this trust becomes effective and the Surrogate’s Court appoints a testamentary trustee. Continue reading

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One of the most important aspects when administering an estate is establishing the identity of a decedent’s next of kin. The persons comprising next of kin or heirs are commonly referred to in New York as “distributees”. Surrogate’s Court Procedure Act (SCPA) Section 103(14) defines a distributee as a person who would be entitled to receive part of a decedent’s property pursuant to the statutes regarding “descent and distribution”.

The New York Probate Lawyer Blog has published numerous posts regarding kinship. In a probate proceeding, distributees of a decedent must be ascertained and provided notice regarding the probate of the Last Will. This is because the distributees must be given the opportunity to Contest the Will. Continue reading

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When a person prepares an Estate Plan and a Last Will and Testament one of the important decisions to be made concerns the selection of an Executor. A Last Will contains a provision in which the testator nominates an Executor. It is also important to nominate a successor or alternate Executor in case the primary nominee is unable to serve as a fiduciary. A Will may also contain a provision appointing testamentary trustees if the testator created a testamentary trust in the Will.

The person selected to act as the Executor can be anyone that the testator wants to be in charge of estate administration. The person selected is typically a family member or friend. There is no requirement that the Executor have any experience or expertise in handling estate matters or have any financial background. There is also no requirement that the Executor be living in New York. The fiduciary has the authority the obtain the services of professionals such as attorneys, accountants and investment advisors to help with the various tasks regarding settlement of the estate. Continue reading

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The estate of a decedent is distributed in two basic ways. If a person dies with a Last Will and Testament, once the Will is admitted to probate, the Will provisions determine the distribution. When a person dies without a Last Will, then he is considered to have died intestate. An intestate estate is distributed to the decedent’s next of kin according to Estates, Powers and Trusts Law (EPTL) Section 4-1.1.

The New York Probate Lawyer Blog has previously reviewed statutory provisions known as a Right of Election. This law is contained in EPTL Section 5-1.1-A. A Right of Election gives a surviving spouse the right to receive a share of a decedent’s estate even if the spouse is disinherited. For example, if a decedent leaves a Last Will and makes no provision for the surviving spouse, the spouse can file a Right of Election with the Surrogate’s Court. The statute provides that the spouse is entitled to receive the greater of $50,000.00 or one-third of the decedent’s net estate. In these cases, when the Executor is ready to settle the estate, he will calculate the spouse’s Right of Election share for distribution even though there is no provision made in the Will for the spouse. Continue reading

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The Guardianship law in New York is found in Article 81 of the Mental Hygiene Law (MHL). The Court may appoint a Guardian if it finds that a person is incapacitated. However, incapacity is not always easy to determine or prove.

New York City Guardianship Attorneys typically review Section 81.02 of the MHL. This section sets forth that any decision by the Court regarding incapacity needs to be made upon clear and convincing evidence. This evidence can be easy or hard to obtain. In some cases where a person has suffered a severe injury or illness it is apparent that the person would probably suffer harm without a Guardian since he cannot provide for his own personal needs or property management. An example would be where a person is unconscious or completely immobilized or unable to engage in any activities of daily living. Continue reading

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When a person dies there are many issues that can affect the settlement of his estate. Initially, it must be determined wither the decedent had executed a Last Will. If so, then a probate proceeding is to be filed in the Court. In the event the decedent died intestate (without a Last Will), then an Administration proceeding is filed.

Another primary issue that needs to be considered is whether the decedent was a domiciliary of New York. Domicile is defined in the Surrogate’s Court Procedure Act (SCPA) Section 103(15) as a person’s principal fixed and permanent home. Domicile is important because generally the New York Courts only have jurisdiction over the estates of a person domiciled in New York at the time of death. A person may have numerous residences but he can only have one domicile. The New York Probate Lawyer Blog has discussed this issue in earlier posts. Continue reading

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A fiduciary of an estate refers to an Executor or Administrator. The estate fiduciary can be removed if he breaches his fiduciary duty. The Surrogate’s Court Procedure Act (SCPA) contains a number of provisions concerning the circumstances in which a fiduciary can be removed.

SCPA Section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct” provides a number of grounds whereby a fiduciary can be removed. The New York Probate Lawyer Blog has posted numerous articles regarding the breach of fiduciary duty and the revocation of letters of testamentary or letters of administration. Continue reading

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