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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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A common issue that is found in many contested Guardianship cases and Estate matters is whether a person’s beneficiary designations or asset plan has been the subject of undue influence.    New York  City Estate Lawyers, like those throughout the state, are accustomed to having clients claim that the only reason the client was not named as a decedent’s beneficiary was because the individuals who did receive assets improperly influenced the decedent’s decisions. Undue influence is not an easy concept to prove or even to completely understand. Courts have recognized that undue influence is not easily determined.  Also, wrongful acts by one party over another are typically not as clear-cut as one person threatening the other.  The improper conduct is usually more subtle and subversive and may occur over an extended period of time.   In most cases the issue as to whether a person’s testamentary plan is the result of undue influence or improper conduct is a question of fact to be determined at a trial. Continue reading

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The New York Probate Lawyer Blog contains numerous posts regarding Article 81 Guardianship proceedings. These cases are started when a person files a petition with the Court alleging that an individual is incapacitated and needs the appointment of a Guardian to assist with the individual’s affairs. Typically, the petition seeks the appointment of a Guardian for personal needs and for property management for the alleged incapacitated person (“AIP”).

Since determining that a person is incapacitated and requires the appointment of a Guardian is a significant deprivation of a person’s individual freedom, the Courts are very diligent to make sure that the interests of the AIP are fully understood and protected. In most Guardianship cases the Court will appoint a Court Evaluator to investigate the issues concerning the petition and to prepare a report for the Court to review. Sometimes the Court will also appoint an attorney to represent the AIP in the case. Continue reading

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Estates and Trusts are administered by fiduciaries. The Surrogate’s Court Procedure Act (SCPA) section 103 (21) identifies persons that are fiduciaries and includes such office holders as Executors, Administrators and Trustees. Such persons are obligated to act in accordance with duties and responsibilities as set out in the New York statutes such as the SCPA, the Estates, Powers and Trusts Law (EPTL) and the rulings of the various courts such as the Surrogate’s Court.

New York estate lawyers are familiar with provisions of the law that permit the Surrogate’s Court to remove a fiduciary when he breaches his obligations or is otherwise unfit to serve in such capacity. The New York Probate Lawyer Blog has published numerous posts regarding this issue which is of utmost importance in estate and trust administration. Initially, reference should be made to a number of laws in this area. SCPA section 711 is entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct.” This statute provides a number of grounds for the removal of a fiduciary which include dishonesty or otherwise being unfit to serve in such capacity. Another statute that deals with these matters is SCPA section 719 which is entitled “In what cases letters may be suspended, modified or revoked, or a lifetime trustee removed or his powers suspended or modified, without process.” Continue reading

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Litigation concerning estate matters has been discussed in many posts in the New York Probate Lawyer Blog. The variety of Surrogate’s Court disputes sometimes appears endless. These matters include contested probate proceedings, as well as proceedings to discover and recover a decedent’s property from third parties who have wrongfully taken such property. Also, proceedings to remove an Executor or Administrator because of a breach of fiduciary duty are not uncommon.

Recently, a number of stories have been written concerning estate disputes that involve well-known individuals. These articles present good examples of the problems presented when an estate is in turmoil.  A post appearing in the hollywoodreporter.com on November 17, 2014 by Eriq Gardner is entitled “Court: Sherman Hemsley Won’t Be Dug Out From Grave.” As reported, Sherman Hemsley was a famous actor appearing in sitcoms as the character George Jefferson. Shortly before his death in July 2012, Mr. Hemsley signed a new Will in which he left his estate to his business manager/best friend. Although the Will was contested by Mr. Hemsley’s brother, the probate court found the Will to be valid. In the appeal, which the brother also lost, he asserted that Mr. Hemsley should have been buried in a different location and that the business manager should not have made this decision. The appeals court declined to order that Mr. Hemsley’s body be removed and found that the brother’s rights to decide where to bury Mr. Hemsley were extinguished. Continue reading

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The New York Probate Lawyer Blog has discussed in numerous posts the benefits of estate planning and preparing planning documents.   These papers include a Last Will and Testament.   When preparing a Will the creator should express his intentions to his New York estate lawyer so that the document reflects his desires. There are many types of provisions that can be found in a Will.   Clauses that deal with the disposition of assets are among the most important.   The Will language should also unambiguously identify the persons who are to receive estate assets.

The names of beneficiaries should be correct both in spelling and an identification of relationship to the testator such as “my wife” or “my cousin”.    Any mistakes regarding even this simple statement can lead to estate litigation regarding the testator’s intended meaning and possibly even a contested Will. Continue reading

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The settlement of an estate in New York involves the preparation of an account by the fiduciary. Executors and Administrators need to assemble an account that provides information regarding the transactions that occurred during the administration of the estate.

New York estate lawyers are familiar with the provisions of the Surrogate’s Court Procedure Act (“SCPA”) that relate to accountings. These provisions are contained in Article 22 of the statute. The provisions of the law and the Surrogate’s Court Judges are generally liberal with regard to the right of an estate beneficiary to receive documents and information relating to a fiduciary’s handling of estate affairs.   SCPA Section 2211 provides, in part, that the fiduciary can be examined under oath either before or after objections are filed. This section also allows document discovery to occur during such examination period. As a result, an estate beneficiary can obtain copies of bank statements, brokerage statements, expense receipts and bills, estate tax returns and other papers that can provide information as to whether there are any issues concerning the accuracy or validity of the account. In the event the beneficiary feels that the account is improper he can file Objections with the Court. Continue reading

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The settlement of a New York estate can be divided into three main parts.  The estate can begin with proceedings to probate a Will and appoint an Executor.  If there is no Will and the decedent died intestate, then a petition can be filed to appoint an Administrator.  Once the estate fiduciary is appointed the next stage involves the task of identifying and collecting assets, determining and resolving debts and claims and paying estate expenses such as taxes which include both income and estate taxes. Of course, both of the above stages can be complicated by various forms of issues and estate litigation involving a Will contest, a kinship hearing or other disputes.  These controversies may delay the appointment of a fiduciary and the resolution of estate affairs.

Once the estate activities have been concluded, the time has come for the fiduciary to prepare his accounting and make a distribution to the beneficiaries. In most instances the beneficiaries will receive a copy of the account along with a form entitled “Receipt, Release and Waiver and Refunding Agreement” or some variation thereof. Essentially, the form will provide that the beneficiary approves of the account and releases the fiduciary from further liability regarding the estate. If all of the interested parties sign a release form, the estate executor or administrator will not have to file a formal accounting proceeding in the Surrogate’s Court to obtain the approval of his account. This informal method of accounting results in less time and cost for the finalization of the decedent’s affairs. If any of the beneficiaries have any questions regarding the account they can ask the fiduciary directly to respond to their inquiry. Also, if a beneficiary wants to review any of the estate papers such as bank account statements or an estate tax return, such paper can be requested from the executor or administrator. Continue reading

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New York estate litigation may involve many different types of issues. An estate fiduciary such as an executor or administrator may discover and obtain possession of the decedent’s property by commencing proceedings under Surrogate’s Court Procedure Act (SCPA) Section 2103.

However, as New York Probate Lawyers know, one of the most common areas of Surrogate’s Court disputes involves contesting a Will. The basic requirements for a Will execution are found in Estates, Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of Wills; formal requirements”. As discussed in earlier posts in this Blog, such requirements include that the testator sign in the presence of the attesting witnesses or that he acknowledges his signature. Continue reading

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The New York Probate Lawyer Blog has talked about the need for individuals to engage in proper estate planning. Planning documents include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. Persons who only have modest estates still should implement papers so that their intended beneficiaries do not face the uncertainties that arise when planning documents are not professionally prepared or are not prepared at all.

It is sometimes astonishing that individuals who have amassed a tremendous amount of wealth during their lifetime by successfully operating a business can be so neglectful when it comes to estate planning.  The result of such inattention often is in the form of a Will Contest. Continue reading

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