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A Guardianship proceeding in New York is controlled by the provisions of Article 81 of the Mental Hygiene Law (MHL).  The New York Probate Lawyer Blog has discussed in earlier posts that the New York Courts have the jurisdiction to impose Guardianship directions generally over in-State matters.  MHL Section 81.04 provides, in part, that relief can be provided for a New York State resident or a non-resident that is present in the State.  Furthermore, MHL 81.05 set forth that the proceeding is to be commenced in the county where the alleged incapacitated person resides or is physically located.

Guardianships are typically controlled by local State laws. In the past, complicated problems have arisen where Guardianship matters involve more than one State. For example, a Guardianship may have been put into place in New York. If it is decided that it would be best to move the incapacitated person to another State such as New Jersey or Florida, the problem that would be faced is whether and to what extent the new State would recognize the Guardianship determinations that occurred in New York. In many instances a new Guardianship case would need to be commenced in the new State in order to have a local Guardian appointed. Continue reading

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A New York Estate Planning attorney is familiar with the numerous issues that need to be reviewed when creating estate planning documents. Such documents include Last Wills and Living Trusts.

As pointed out in the New York Probate Lawyer Blog, a fundamental aspect in the planning process is understanding the property owned by a person and the manner in which such asset is held. For example, real estate interests can be owned by someone in their individual name or in their name as a joint tenant with another person or as a tenant in common with others. When a person dies, an asset that is owned jointly or with a designated beneficiary passes to the joint owner or designee outside of the decedent’s estate. Thus, such property would not be subject to the terms of a Last Will or the laws of intestacy. Continue reading

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Estate proceedings in New York typically involve the collection of assets that were owned by the decedent. In most cases the assets are easily identified and collected such as bank accounts or securities accounts.

As discussed in earlier posts in the New York Probate Lawyer Blog, there are occasions when third parties claim possession or title to assets that are estate property. When this happens the Executor or Administrator must commence litigation to recover these items. The starting point for this type of Court proceeding is Surrogate’s Court Procedure Act (SCPA) 2103 which is entitled “Proceeding by fiduciary to discover property withheld or obtain information”. This proceeding is generally known as a “turnover proceeding” and is used by the fiduciary to obtain information about withheld assets and to require that such assets or the proceeds of such assets be turned over to the fiduciary. Continue reading

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When a person dies without a Last Will and Testament he is deemed to have died intestate. As discussed in many earlier posts in the New York Probate Lawyer Blog, where there is an intestate decedent, a petition needs to be filed with the Surrogate’s Court seeking Letters of Administration.

The estate administrator has similar statutory powers to those of an executor where a person leaves a Will. There are numerous issues that can arise in the context of intestate administration. A recent case decided on October 9, 2015 by Brooklyn Surrogate Diana Johnson entitled Estate of Evans provides an interesting analysis of just some of the legal and factual complexities. Continue reading

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A New York Guardianship proceeding under Article 81 of the Mental Hygiene Law (“MHL”) typically requires that the Court find the alleged incapacitated person (“AIP”) to be incapacitated. The focus of the Court is on the functional abilities of the AIP and the manner in which the AIP can handle activities of daily living without assistance. These activities include the ability to feed oneself or handle necessary personal hygiene.

The Guardianship Court will also focus upon whether a person has advanced directives or alternative means by which to accommodate a disability. For example, as part of the creation of an Estate Plan, a person may have put into place a Power of Attorney, a Living Will, a Health Care Proxy or a Living Trust. These papers provide a means by which a person can have their personal needs and property management attended to after they no longer have the capacity to do so by themselves. There may also be situations where caretakers such as family members or nursing professionals may be in place to care for and monitor a person’s ongoing needs despite an apparent disability. Continue reading

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An estate fiduciary such as an Executor and Administrator has many different obligations. The New York Probate Lawyer Blog has discussed many of these duties. For example, the fiduciary must locate, protect and collect estate assets. This function includes such tasks as closing a decedent’s bank accounts or brokerage accounts and depositing the funds into a newly established estate bank account.

Also, the fiduciary must pay a decedent’s debts and obligations. These items may include rent, mortgage payments, utility bills, income taxes and credit card payments. Another source of expenses are those incurred during the course of Estate Administration or Estate Settlement such as estate taxes, brokers fees that may be incurred if a decedent’s real estate needs to be sold and the costs of maintaining and protecting estate assets. Continue reading

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When a person dies without a Last Will he is deemed to have died intestate. New York Surrogate’s Court Procedure Act (“SCPA”) Section 103(28) defines “Intestate” as “A person who dies without leaving a valid will.”

The New York Probate Lawyer Blog has published many posts regarding the administration of estates where there is no Will. In these cases the decedent’s distributees (next of kin) have the right to file a petition with the Surrogate’s Court and ask to be appointed as the Estate Administrator. Continue reading

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It is very common that a decedent is a tenant in a New York City Rent Stabilized or Rent Controlled apartment. The rules regarding such rent regulated housing are very complex and concern matters such as the amount of rent that can be charged and other landlord-tenant issues.

One of the aspects of rent regulated housing is that certain family members and other persons who had been living together with the decedent in a family relationship, are entitled to succession rights to the apartment. In other words, these survivors have the right to take over and become the new tenant under the lease in the place and stead of the decedent. Continue reading

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New York Estate Lawyers know that it is important for individuals to create plans that reflect their intentions. An estate plan can include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust.

It is important that when creating these documents, an individual give serious consideration to the provisions that are made in each instrument. For example, when preparing a Power of Attorney, a person should be careful to designate an agent that is trustworthy and that the agent be given powers that are necessary and restricted as the situation or circumstance may require. It may not always be the best course just to fill out the standard Power of Attorney form with all of the powers provided and sign it without regard to the possible consequences of such act. Continue reading

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Executors and Administrators in New York have many different duties and fiduciary obligations.  The New York Probate Lawyer Blog has discussed the importance of a fiduciary acting properly and protecting estate assets.

A source of controversy in estate administration often involves the ownership and management of real estate. Typically, a decedent’s home and other real estate holdings constitute the most valuable asset in an estate. Sometimes, a relative of the decedent or friend may have been living with the decedent for many years prior to the decedent’s death. Once a fiduciary is appointed to handle estate matters, the executor or administrator will need to take control over the real estate. This may result in the need to evict the persons who had been living with the decedent. The fiduciary must be able to protect the real estate and control it since there is a fiduciary obligation to safeguard estate property. As can be imagined, the long-time occupant of the property may oppose or interfere with the fiduciary’s activities and claim that they have a right to continue to occupy or even own the home. In these cases the fiduciary needs to commence Surrogate’s Court proceedings or Landlord-Tenant eviction proceedings to obtain control over the real estate. In some cases the Court may issue an injunction and stop the occupant from interfering with the executor or administrator or otherwise causing harm to the property. Continue reading

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