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One of the more common problems that an executor or administrator may encounter is an unauthorized occupant of a decedent’s real estate. The New York Probate Lawyer Blog has discussed this issue in a number of earlier articles. However, since this matter routinely occurs during the course of estate settlement, a review of the matter is appropriate.

The situation that is typically faced is that when a person dies owning real estate such as a single or multi-family home or property, there may be third-party individuals who continue to reside in the property. These individuals may be other family members or non-family friends or tenants. In a lot of these cases, these occupants do not have any leases or any right to continue occupying the property. Since it is the estate fiduciary’s duty to distribute the real estate to estate beneficiaries or to sell it to effectuate a payment to beneficiaries of their estate share, the fiduciary needs to have all occupants vacate the property. Continue reading

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Probating a Last Will in New York can be an uncomplicated matter. In many situations the probate proceeding is commenced by a close family member who is named as the Executor in the Will. While there are a number of Court and statutory formalities that must be adhered to, the assistance of an experienced New York City Probate Lawyer can facilitate the process.

I have represented clients for over 30 years in all types of probate proceedings both contested and uncontested. The New York Probate Lawyer Blog provides numerous articles discussing the many issues that can arise regarding Surrogate’s Court procedures. Continue reading

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One of the most commonly utilized procedures to assist an estate Executor or Administrator to locate and obtain estate assets are the provisions provided by Surrogate’s Court Procedure Act (SCPA) 2103 and 2104.   SCPA 2103 is entitled “Proceeding by fiduciary to discover property withheld or obtain information” and SCPA 2104 is entitled “Inquiry; trial and decree”.

These two statutes when read together provide a two stage method for the discovery and turnover of any assets that are owned by a decedent. The New York Probate Lawyer Blog has discussed this issue in a number of prior posts. Continue reading

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The identity of a decedent’s heirs at law are an essential element in all probate and intestate administration cases.   There have been numerous posts in the New York Probate Lawyer Blog that examine this issue.  When a Last Will is offered for probate, the person petitioning for the Will’s admission to probate must provide the Court with the names and addresses of the decedent’s distributees (i.e., next of kin).  Distributees require notice of the proceeding because they have a right to object to the Will.

A New York City Estate Attorney typically obtains kinship information from a person when they are preparing an estate plan and Last Will.    This information can sometimes  be invaluable when preparing the probate papers.  It is possible that there are no family members or friends who may have complete family tree information.  If the probate petitioner cannot provide the information on distributees a due diligent search must be made for the next of kin.  This search may require that services of professional investigators such as genealogists be obtained.   Also, the Court may require that a Court Citation be directed to all unknown distributees.  The Citation must be published in a local newspaper. Continue reading

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There are many different aspects to estate administration that requires consideration. The New York Probate Lawyer Blog has pointed out in earlier posts that the estate laws provide certain protections for a decedent’s spouse.

Estates, Powers and Trusts Law (EPTL) Section 5-1.1-A entitled “Right of election by surviving spouse”, contains provisions which require that a surviving spouse receive a share of a decedent’s estate. This share is referred to as the elective share. The statute provides that the elective share is equal to the greater of $50,000.00 or one-third of the decedent’s net estate. Continue reading

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The New York Probate Lawyer Blog in the March 1, 2017 posting discussed some of the aspects involved in a Will Contest in New York. The post referred to a decision by Queens Surrogate Peter Kelly dated February 9, 2017 which dismissed the Objections to the Will and admitted the Will to probate. The decision was in a case called Will of Bellasalmo. One of the Objections to the Will in Bellasalmo was based upon the assertion that the Will was the product of a mistake. The Court pointed out that in order for an Objectant to demonstrate a mistake, it would need to show that the decedent failed to understand the terms of the Will or that the attorney who drafted the Will did not follow the decedent’s instructions. Since the Objectant in Bellasalmo could not provide any evidence in this regard the Objection based upon mistake was dismissed.

It should be pointed out that in a Will Contest case, the Objections that are filed contain a number of different allegations. Typically, the Objections will claim lack of due execution, lack of testamentary capacity and undue influence. Continue reading

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Will contests in New York involve many different considerations. To begin with, there is a complex set of statutes and rules regarding the procedure to be followed in these cases. When a Will is filed with the Court for probate, it is necessary to provide notice to all of the decedent’s next of kin regarding the probate proceeding. The next of kin, known as distributees, have a right to Object to the Will. The notice they receive is called a Citation.

Prior to filing Objections to a Will, the distributees have the right to obtain testimony and documents from the attorney who drafted the Will and the attesting witnesses. These steps are provided for by Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required”. Continue reading

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The preparation and execution of a Last Will is an important part of a person’s estate planning. A Will along with documents such as a Living Will, Health Care Proxy, Power of Attorney and Living Trust, can all be utilized to express a person’s desires and intentions regarding his property and personal affairs.

Many posts provided by the New York Probate Lawyer Blog discuss the need to expend the time and effort required to prepare and finalize a Will so that it fully provides for estate distribution. New York City Estate Administration attorneys assist clients in reviewing their assets and developing plans that most effectively reflect the client’s wishes. Continue reading

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Surrogate’s Courts in New York are known for handling proceedings concerning the estates of a decedent. New York City Probate Lawyers assist their clients with filing cases for the probate of a Last Will. Estate Attorneys also help when there is no Will and a decedent dies intestate. In these matters a proceeding is filed to obtain Letters of Administration.

While probate and administration matters are commonly recognized to be reviewed by the Surrogates, there are many different types of issues and controversies that the Court decides. The general rule is that the Surrogate’s Court has jurisdiction over all matters that can effect a decedent’s estate. The variety of cases is endless. For example, I have represented clients in cases where the Court has been asked to evict occupants of a decedent’s residence. This typically occurs when a family member refuses to vacate the decedent’s property so that the executor or administrator can sell it on behalf of the estate. The Court can direct the occupant to vacate the property and can issue a warrant to the NYC Marshall or Sheriff to effectuate the eviction. The New York Probate Lawyer Blog has discussed some of these eviction problems in earlier articles. Continue reading

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Guardianship cases in New York are provided for by Article 81 of the Mental Hygiene Law (“MHL”). Article 81 is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. As a New York City Guardianship attorney, I have represented many individuals who have filed petitions for Guardianship appointment.

MHL Section 81.02 essentially requires that unless a person agrees to the appointment, the Court must find by clear and convincing evidence that a person is incapacitated. The person against whom the proceeding is brought is called an alleged incapacitated person (AIP).  The AIP is entitled to a hearing before the Court can make its decision regarding the need for a Guardian (MHL 81.11). Continue reading

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