New York Probate Lawyer Blog

October 7, 2015

New York Courts Require that the Terms of a Last Will and Testament be Followed

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

September 30, 2015

New York Surrogate’s May Issue an Injunction to Protect Estate Property

by Jules M. Haas

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

September 23, 2015

New York Guardianship Cases Require Court Jurisdiction and Compliance with Procedure

by Jules M. Haas

Article 81 of the New York Mental Hygiene Law contains the provisions regarding the appointment of a Guardian. As discussed in earlier posts in the New York Probate Lawyer Blog, when a person is found to be incapacitated the Court can appoint a Guardian for personal needs and also for property management.

A Guardianship case is commenced by the petitioner who files a proposed Order to Show Cause and a Verified Petition with the Court. Upon receipt of these papers, the Court will review the allegations to determine whether it will sign the Order. Continue reading

September 16, 2015

A New York Supplemental Needs Trust May Be Approved by the Court To Hold Guardianship Assets

by Jules M. Haas

A Supplemental Needs Trust (“SNT”) is a trust that is typically created to provide a protected fund for persons who receive benefits from governmental sources. Ordinarily, if an individual is the recipient of benefits from Medicaid or social security disability or other governmental programs, the receipt of private funds by such individual would disqualify them from obtaining future benefits. The private monies would either need to be paid to the government as repayment for past benefits or spent down before government subsidies could resume. The SNT allows a person to have the best of both worlds. Funds can be held in a SNT while the government benefits continue to be paid.

A SNT can be created and utilized in many different situations. For example, in estate planning, where a parent has a child or potential beneficiary that is a recipient of benefits such as Medicaid, a SNT can be established as a provision in a Last Will or Living Trust to provide a source of extra financial benefit for such person without risking any loss of benefits. New York Estates, Powers and Trusts Law Section 7-1.12 entitled “Supplemental needs trusts established for persons with severe and chronic or persistent disabilities” provides the requirements for the creation of such trusts. Continue reading

September 9, 2015

New York Will Contests Involve Discovery of Information

by Jules M. Haas

There are many types of proceedings that occur relating to a decedent’s estate. One of the most common matters involves the probate of a Last Will and Testament. New York estate lawyers are familiar with the manner in which a Will is presented to the Surrogate’s Court. In the typical case, the original of the Will is filed with the Court along with a death certificate, a petition and other papers. Having a Will admitted to probate simply means that the Will is validated by the Court and its provisions regarding asset distribution and other directions must be followed. At the time probate occurs the Court appoints an estate fiduciary who is typically the Executor nominated in the Will. The New York Probate Lawyer Blog has posted many articles explaining the probate of an estate.

In some situations the probate process turns into a Will Contest. When the situation concerns a contested Will, the typical occurrence is that one or more of the decedent’s next of kin (“distributees”) disputes the validity of the Will. This dispute can be based upon the grounds of undue influence, lack of testamentary capacity or improper execution of the Will. Continue reading

September 2, 2015

New York Estate Rights Can be Revoked by a Divorce

by Jules M. Haas

The estate of a decedent can be affected by many different pre-death and post death events. For example, the decedent may be involved in a lawsuit during life that is still ongoing at the time of death. It will then be up to the estate Executor or Administrator to take over the lawsuit to its conclusion. Depending upon the nature of the case, the lawsuit may result either in a liability to the estate or an asset if the estate recovers money.

New York Probate Attorneys are familiar with many other situations that can impact estate settlement. One such situation involves the marital status of the decedent at the time of death. Under the New York estate laws, a spouse of the decedent has certain rights. If a married person dies without a Last Will, Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1 provides that the surviving spouse would inherit a share of the decedent’s estate. Also, it is not uncommon that a spouse is named as a primary beneficiary in a decedent’s Last Will and Testament. However, even where a spouse is not named in a Will, EPTL Section 5-1.1-A, entitled “Right of election by surviving spouse”, provides the survivor with the right to receive the greater of $50,000.00 or one-third (1/3) of a decedent’s net estate. Continue reading

August 26, 2015

New York Guardianship Cases Can Be Contested

by Jules M. Haas

Article 81 of the Mental Hygiene Law (“MHL”) is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. The New York Probate Lawyer Blog has posted many discussions regarding the process of having a Guardian appointed for an incapacitated person.

The statute provides that the Court may only appoint a Guardian after the Court has conducted a hearing (MHL §81.11). At the hearing, the parties can “present evidence” “call witnesses”, “cross examine witnesses” and be represented by an attorney. Also, the statute requires that the Court hearing take place in the presence of the person who is alleged to be incapacitated. The most essential element in the Guardianship case is typically whether a person is incapacitated. Incapacity is defined in MHL § 81.02 which sets out the basic criteria for a Guardianship appointment. Continue reading

August 19, 2015

New York Real Estate Ownership Can Complicate Estate Settlement

by Jules M. Haas

The estate of a New York decedent contains many different types of assets. One of the most important items of ownership in an estate is real estate. These interests commonly constitute one of the estate’s most valuable assets. Since real estate holdings are so valuable and because the laws concerning real estate interests can be complex, estate executors and administrators can be engulfed by the need to resolve property issues during estate administration.

The New York Probate Lawyer Blog has had many posts discussing real estate issues that have arisen during the course of estate proceedings. One very common example of these issues occurs when the decedent dies and his residential home is also occupied by other family members. While the other family members have no title interest in the property, they often do not want to vacate the home where they lived with the decedent for many years. In these cases the estate fiduciary needs to have the family members move so that the property can be sold and the proceeds distributed to estate beneficiaries. When these differing interests collide, the result is that estate litigation in the Housing Court or Surrogate’s Court is needed to resolve the dispute. Continue reading

August 12, 2015

New York Executors Should Protect A Decedent’s Real Estate Interests

by Jules M. Haas

A New York Executor and Administrator each have many fiduciary obligations. Earlier posts in this blog have discussed the need for estate representation to identify and collect the assets of an estate.

Estate Lawyers in New York are often asked by clients to provide guidance regarding real estate interests that are owned by a decedent. Many times the value of the real property that is involved constitutes the largest asset of an estate. Such property can take many different forms. The decedent may have owned a single family home or may be the owner of a multiple unit property which contains residential tenants that were paying rent. There are also situations where commercial property was owned as part of a decedent’s business and is included among his assets. Continue reading

August 5, 2015

Selecting a Trustee in New York Involves Important Considerations

by Jules M. Haas

Selecting the proper fiduciaries in estate planning is an important aspect of the planning process. When an individual creates a Last Will or Trust, the Executor or Trustee is the person who is given the responsibility to carry out the creator’s plan and protect the creator’s assets.

The fiduciary has many different responsibilities which include safeguarding and investing assets and paying income and principal to named beneficiaries. A person who is nominated and acts as an executor or trustee owes fiduciary duties to the beneficiaries. Sometimes the interests of the beneficiaries may be in conflict. For instance, an income beneficiary of a trust will want the trustee to invest in high income producing assets while a beneficiary who has an interest in the principal or trust remainder may want investments that produce lower income but higher long-term growth. The trustee must balance the interests of the beneficiaries and often is guided by the terms of the Will or Trust agreement regarding the manner in which he proceeds. Continue reading