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The Surrogate’s Courts in New York are familiar to most persons as the Court where Wills can be probated and Executors and Administrators appointed to handle estate affairs. While it is accurate that the primary issues presented to the Court are the appointment of estate fiduciaries, there are a plethora of issues that are involved in estate administration that require Court intervention.

A New York City Estate Lawyer is familiar with the many provisions in the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act that provide for accessibility to the Surrogate to determine issues regarding estate affairs. For example, SCPA 2103 is entitled “Proceeding by fiduciary to discover property withheld or obtain information”. This provision allows a fiduciary to commence a Court proceeding against a third party to recover the decedent’s property that is being withheld from the estate.  SCPA 2105 allows a proceeding to be filed to compel a fiduciary to deliver property that is claimed by a third party. Continue reading

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The New York Probate Lawyer Blog has discussed in earlier posts the variety of issues concerning the transfer of a decedent’s assets. One of the most common and valuable estate assets is the decedent’s home. A person’s home can be in the nature of real property such as a single family home. However, New Yorkers are very familiar with living in the setting of an apartment in a high-rise building. Apartments can be as valuable and the subject of controversy as separate residential realty. A decedent may have been living in a cooperative apartment or even in a residential building where he was the tenant in a rent-stabilized or rent-controlled unit. These different forms of property rights can present unique problems to be resolved during estate settlement.

In the case of a cooperative apartment, the decedent’s interests may have been bequeathed in a Last Will to family members or may need to be sold to a third party purchaser.  In each instance, the general rule in a cooperative building is that a transfer of the Unit cannot occur without approval of the cooperative board of directors.  In many cases, such approval is not  easily obtained since the cooperative board is given broad discretion to approve or disapprove of the transfer. Continue reading

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A New York estate lawyer is familiar with the numerous problems that can arise regarding the administration of a decedent’s estate. Sometimes these matters are the result of actions or relationships that the decedent was involved with prior to death. The estate executor or administrator has a fiduciary obligation to resolve these disputes. Assets of the decedent must be protected and creditors claims must be satisfied or disposed of.

A recent post at hollywoodreporter.com on February 9, 2015 by Austin Siegemund-Braka reports about another chapter in the settlement of the estate of the late pop star Michael Jackson. The post, entitled “Hollywood Docket: Michael Jackson’s Ex-Manager Revives Neverland Ranch Dispute”, relates the details regarding a claim by the pop-star’s manager for unpaid commissions earned during Michael Jackson’s lifetime as well as a claim for a fee for securing a loan on Michael Jackson’s Neverland property to prevent its foreclosure. The estate executors opposed the claims and both parties had filed lawsuits in 2012 that were put on hold pending other related proceedings. The Court has now lifted the stay to allow the issue regarding the Neverland loan to move forward. Continue reading

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It is very common that a person who dies or is incapacitated receives health care and services that are paid for by government agencies in the form of Medicaid. As New York estate lawyers often encounter, a decedent who had been ill and unable to pay for his care through private insurance or personal funds probably would have had his care paid through Medicaid. Medicaid payments can cover persons who live at home or who reside in nursing homes or other facilities. Particularly where a person has had a serious illness with extensive hospitalization and nursing home stays, the expenses that are paid by Medicaid can be quite large. Under various state laws and rules, Medicaid is entitled to be reimbursed for its expenditures. This reimbursement typically occurs after a person dies if there are assets in his estate. It may be that the decedent passed away owning a home or other assets but had been receiving Medicaid coverage during his life.

It is the fiduciary obligation of an Executor or Administrator to make sure that all of the decedent’s debts and the claims against the estate are satisfied. Thus, the estate fiduciary is required to satisfy a claim for reimbursement that is asserted by the local Medicaid authority. Also, in the event the estate Executor or Administrator is aware that the decedent may have been receiving medicaid benefits, it is important to obtain information regarding this claim before distributing estate assets. Once the assets are distributed to beneficiaries, the Medicaid authority may attempt to obtain payment of the claim against the fiduciary personally and assert that the fiduciary should have known about the claim before he paid the beneficiaries. Estate settlement can be a very complicated process and the collection of assets and payment of a decedent’s debts often require the guidance of an experienced estate attorney. Continue reading

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Estate planning in New York is an important consideration for many reasons. In addition to designating the manner in which a persons assets are to be distributed, an important aspect of planning is the nomination of an estate Executor. By creating a Last Will a testator can name the persons who are to act as Executors and also Successor Executors, if needed. Obviously, selecting the individuals that you trust and have confidence in to carry out the terms and intentions of the Will provisions provides the essence of insuring that a plan for estate settlement is accomplished.

When a person dies intestate, or without a Will, his estate becomes subject to the rules and laws concerning an Administration proceeding rather than the probate process. The Administration proceeding is focused on the appointment of an estate Administrator. Since there is no Will that nominates a fiduciary, the proceeding is controlled by Surrogate’s Court Procedure Act (SCPA) 1001 which is entitled “Order of priority for granting letters of administration”.  The statute provides the list of the decedent’s next of kin who have the right to be appointed as the estate Administrator. According to the statute, the decedent’s spouse has priority, then children, grandchildren, the decedent’s parents and then brothers and sisters. While the statute provides an orderly process for the appointment of an Administrator, the persons who have priority may not have been the first choice of the decedent if he had named an Executor in a Last Will. Continue reading

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Estate attorneys in New York are familiar with the many statutes and rules regarding the ownership of property.  One of the fundamental aspects involved in estate planning is knowing and understanding the manner in which a testator owns his assets.  As examined in many previous posts in the New York Probate Lawyer Blog, a Last Will typically only controls the disposition of assets that a decedent owns in his name alone.  Property interests that are held in joint tenancy or with a designated beneficiary such as a life insurance policy pass directly to the surviving joint owner or beneficiary upon a person’s death and do not become part of the estate subject to disposition by the terms of the Last Will.

In particular, in the case of real estate that is owned by a husband and wife, New York law creates a special aspect of ownership called a tenancy by the entirety.  This type of ownership essentially provides that when one of the spouses dies, the surviving spouse automatically becomes the sole and absolute owner of the property provided the parties remain married at the time of death. In view of these property rights, lifetime dispositions of one spouse’s interest in the property cannot interfere with or prevent the survivor’s right to become the sole owner upon the other parties death. Continue reading

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When an individual dies it seems more than apparent that the decedent no longer has the ability to act on his own behalf. Likewise, others cannot interact or engage in actions that affect the deceased person. It is for that reason that the New York estate laws provide for the appointment of an Executor or Administrator who has the legal authority and power to act in the place and stead of the decedent.

The New York Probate Lawyer Blog contains many posts discussing the duties and powers of estate fiduciaries. As explained, an Executor is appointed when a Last Will is admitted to probate. An Administrator is appointed when a person dies intestate. The Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act contain the statutory provisions that allow for the appointment of the fiduciary. Continue reading

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A New York Estate is subject to potential estate tax under both Federal and State law. Whether an estate is potentially taxable and requires the filing of an Estate Tax Return depends primarily upon the value of a decedent’s gross estate.   In general the gross estate is comprised of all of the assets that a decedent owned at the time of his death including all items passing under a Last Will or by intestacy as well as items transferred by operation of law. These latter items include assets that are owned jointly with others or which have named beneficiaries such as retirement accounts and life insurance. For example, assume that a decedent left a Will and the value of the assets that were part of his probate estate were $1 million. In addition, assume that the decedent had joint assets such as real estate or bank accounts with a value of also $1 million. Thus, the gross estate value appears to be $2 million dollars.
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New York Estate Planning can involve many different aspects. In most instances, individuals assume that the need to consult an estate planning attorney only arises when a person has significant assets that may result in the imposition of Federal estate taxes or state estate taxes. In fact, even when there is no potential for taxes being imposed at death, the preparation of a Last Will is really a form of estate planning by avoiding the uncertainty of intestate administration.

When tax planning is or may be important, one of the more common planning methods is to use life insurance as a planning device. Life insurance can provide a means by which an estate can increase liquidity and provide funds to pay estate taxes and monetary bequests. A common use of insurance is to create an insurance trust that will own the insurance policy.  The trust will be separate from the decedent’s taxable estate and, therefore, not increase the taxes payable. Continue reading

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When a person dies without a Last Will he is considered to have died intestate. Queens estate attorneys, like those in other counties, are familiar with the procedure to have an Administrator appointed to settle the estate. The Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL) provide the statutory rules and procedures for the appointment of a fiduciary. Typically, anyone who is interested in the estate settlement can petition the Court for the appointment of an administrator. However, the statutes provide an order of priority for the persons who can actually be appointed.

The procedures of the Surrogate’s Court can be very complex and confusing to family members who are faced with having to handle issues relating to a decedent. It is usually a good practice to obtain the guidance of a New York Administration attorney to assist with these matters. A recent case decided by Staten Island Surrogate Robert Gigante  on December 2, 2014 illustrates the problems that can arise when a person does not obtain the help of an estate lawyer. In Matter of Dinger, a grandson of the decedent petitioned the Court to have himself appointed as estate administrator. This petition was opposed by a daughter of the decedent. The grandson claimed that the decedent owned a cooperative apartment. However, the daughter asserted that she owned the apartment with her mother as joint tenants with rights of survivorship.  Such ownership would have kept the cooperative apartment out of the administration estate since it would have passed automatically by operation of law to the daughter.   Continue reading

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