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New York Estate Lawyers frequently refer to Estates, Powers and Trusts Law (EPTL) Section 3-2.1 regarding the formalities required with regard to execution and witnessing of a Last Will. When a petition is filed with the Surrogate’s Court to have a Will admitted to probate, the statutes require that notice of the proceedings be given to the decedent’s next of kin (“distributees”). As discussed in many of the posts in the New York Probate Lawyer Blog, the distributees have a right to file Objections to the Will. In the event the Will is denied probate, then the decedent’s estate is distributed to the heirs as if the decedent died intestate. There are a number of basic Objections that can be set forth in Estate Litigation regarding a Will. These objections include lack of due execution, lack of testamentary capacity, undue influence and duress or coersion. A Will Contest is the part of the probate process where the issues regarding these various objections are finally determined.

The various grounds upon which to base a Will Contest do not generally involve other issues concerning the enforceability or interpretation of Will provisions. A recent case entitled Estate of Attea, decided by Erie County Surrogate Barbara Howe on June 17, 2015, reflects the limited issues involved when determining a Will’s validity. Continue reading

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Planning an estate and advance directives involves a considerable amount of time and review so that the desired result is achieved.  The New York Probate Lawyer Blog has discussed the importance of the many considerations when preparing planning and other documents.  The papers that may typically be a part of a plan include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust.  As Estate Planning Lawyers recognize, a person must review and understand his assets so that the dispositions specified in the documents are effective to carry out the creator’s plan.  For example, if a person is creating a Last Will and desires to devise a certain parcel of real estate , it is important to know the manner in which the real estate is owned.  If the real estate is titled in a joint ownership with rights of survivorship in another person, then the Last Will cannot control its disposition as long as the other joint owner is alive.  As discussed in earlier blog posts, a Last Will generally only controls assets owned by a person in his name alone.

In addition to knowing and understanding the nature of a person’s assets and the title ownership of these items, a person also must carefully determine and describe the recipient of the beneficial bequests. The language used in a Last Will or Trust must correctly and specifically describe the intended beneficiary and the share or amount such beneficiary is to receive. When the dispositive language in a document is ambiguous or unclear, it is common that Estate Litigation occurs to resolve these ambiguities. Continue reading

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A very common issue that arises during the course of estate administration concerns assets that a decedent transfers close to the time of death. These transfers can be in the form of outright gifts or the creation of ownership rights such as a joint tenancy or through a beneficiary designation. For example, a situation may exist where a decedent transfers to another person as an outright gift funds from a bank account. Likewise, the decedent may add a person’s name to a bank account or change a beneficiary designation on an insurance policy or retirement account.

All of these events appear on their surface to be improper especially when the transfer occurs right before a person dies and, in particular, when the transferor is aged and/or suffering from a medical or psychological condition which may impair their judgment. Continue reading

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Estate planning in New York is essential to the proper administration of a decedent’s estate.  Creating an estate plan that includes a Last Will, Living Will, Health Care Proxy, Power of Attorney and possibly a Living Trust can facilitate the process by which assets are passed to family and friends and advance directives regarding health care can be carried out.

When engaging in the planning process it is essential that the technical and statutory requirements and estate rules are adhered to so that the papers and documents created are effective. When a Last Will is prepared and executed in a manner that is subject to dispute, a decedent’s estate can be the subject of a long and complicated Will Contest. Estate litigation is not uncommon when planning documents are unclear and confusing or are not completed according to the standards required by law. Continue reading

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The New York Probate Lawyer Blog has talked about many different aspects of estate settlement.  An estate fiduciary such as an Executor or Administrator has a fiduciary obligation to identify, locate and collect estate assets.

In numerous instances, the decedent may have been involved in business or other transactions where his ownership interest in assets may be unclear or complicated by other factors. Likewise, third parties may be in physical possession of assets that are claimed to be owned by an estate but might have been the subject of a gift. Regardless of the situation, the estate fiduciary must determine the true owner of the asset and use all reasonable efforts to collect the asset on behalf of the estate. A recent case decided by Brooklyn Surrogate Diana Johnson on April 21, 2015 entitled Estate of Elberg, provides insight into the problems that an estate executor may face in recovering estate items. Continue reading

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A Probate Proceeding is just one of the many types of proceedings that can be commenced in the New York Surrogate’s Court. Other types of matters include Administration, Kinship and Accounting Proceedings.

Each type of matter has its own particular set of rules and procedures which are typically found in the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act. Continue reading

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When dealing with matters concerning an incapacitated person, one of the primary concerns is finding the resources to pay for the living expenses and care of the individual. New York Guardianship Lawyers must always determine the type of assets, income and benefits that are available. Incapacity can take many forms and the nature of a disability will be reflected in the expenses incurred. For example, an individual may have been the victim of an accident or stroke and need 24 hour nursing home care. On the other hand, a person may have dementia or Alzheimer’s disease and may be able to live at home with their family.

In situations where care expenses are extensive, personal resources may be unavailable or may have been exhausted. Also, it is possible that as a result of Elder Law Planning and Estate Planning, a person may have transferred assets to others many years before the onset of a disability. Where assets are limited, it is common that government benefits such as Medicaid and Social Security would be available to pay for the cost of care. Continue reading

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There are countless articles and advisory papers that have been written in which people are urged to prepare an Estate Plan. The use of advanced planning documents such as a Last Will, Living Will, Power of Attorney, Health Care Proxy and Living Trust allow a person to specify the manner in which assets are to be managed and tranferred and substituted decision making can be established.

As discussed in many posts in the New York Probate Lawyer Blog, where these planning papers do not exist, the disposition of a person’s estate is left up to the inheritance provisions of State law relating to intestacy. Continue reading

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A New York Guardianship Proceeding is commenced by the filing of a petition.  Mental Hygiene Law (MHL) Section 81.08 sets forth the requirements of the petition.  MHL Section 81.06 designates the persons who may file the proceeding which includes family members as well as any other person who has concerns regarding the alleged incapacitated person (AIP).  The New York Probate Lawyer Blog has described the Guardianship process in numerous earlier posts.

It is very common that Guardianship proceedings involve litigation where family members compete for appointment so that they can control the finances and personal needs of the AIP. Continue reading

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Article 81 of the Mental Hygiene Law (MHL) contains the provisions regarding the appointment of a Guardian for property management and personal needs for a person who is found to be incapacitated.  The New York Probate Lawyer Blog has discussed in earlier posts the procedure to obtain the appointment of a Guardian.  Typically the proceeding is commenced by the filing of a petition with the Court along with a proposed Order to Show Cause.  MHL Section 81.08 sets forth the information to be included in the petition.  This information includes the name and address of the alleged incapacitated person’s (AIP) closest next of kin who are also given notice regarding the commencement of the Court case.

In some cases, a relative or other interested person may file a cross-petition with the Court in which they oppose the appointment of a Guardian or ask the Court to appoint the cross-petitioner as the Guardian rather than the original petitioner. Continue reading

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