New York Probate Lawyer Blog

May 21, 2014

New York Guardianship Issues Can Affect Estate Litigation

The New York Probate Lawyer Blog has provided many posts regarding the interaction between Article 81 Guardianship proceedings and the settlement of a decedent’s estate. In many cases the disputes and Guardianship litigation that occur while a person is alive are a preview and introduction to the Will contests and estate litigation that occur after death. For example, a recent post in the St. Louis Post-Dispatch by Jennifer S. Mann dated May 12, 2014 entitled “Family of Former ‘Wizard of Oz’ Munchkin Battles his Former Caretaker in Court over Estate” describes the family’s attempt to recover the life savings of a wizard of oz actor from the actor’s caretaker. The actor had been suffering from Alzheimer’s disease and the family claimed that the caretaker took economic advantage and depleted his estate. In this situation, the family may have needed to have a Guardian appointed while the actor was still alive to protect him from financial abuse.

Another recent post discusses the situation involving Casey Kasem who was famous for playing the “American Top 40” recordings. Jerry Lynn in a post at CNBC.com on May 19, 2014 entitled “What we can learn from Casey Kasem’s disappearance”, talks about the need for advance planning in such situations, particularly where there is a second marriage. The author talks about the need for advance directives such as a power of attorney and health care proxy, as well as the tension created between a new or second spouse and the children from a prior marriage. Continue reading

May 14, 2014

The New York Surrogate’s Courts Can Resolve Different Matters Relating to a Decedent’s Estate

by Jules M. Haas

The Surrogate’s Courts in New York are located in the various counties. Thus, there is a Manhattan Surrogate’s Court, a Queens Surrogate’s Court and so on. Typically, the county where a decedent had his domicile (i.e., primary home) will be the location where the estate proceedings are to be filed. For example, if a person had their primary home in Brooklyn, the proceedings concerning estate administration or the probate of a Will is to be in Kings County Surrogate’s Court.

Estate attorneys are familiar with the procedures and issues regarding estate settlement. The Court is accessible to resolve many of the issues relating to a decedent. Controversies arise in estate litigation concerning the decedent’s interests in business such as small corporations, partnerships and limited liability companies. The Surrogate generally is the judge who can resolve these disputes since their outcome relates to and affects the decedent’s estate. Additionally, a person may die and be subject to various claims of creditors. The Court can resolve controversies regarding these claims in the estate accounting proceeding or in separate proceedings. Article 18 of the Surrogate’s Court Procedure Act (“SCPA”) is entitled “Claims; Payment of Debts and Funeral Expenses.” The sections in Article 18 deal with the presentation and determination of the validity of claims against a decedent. Continue reading

May 7, 2014

New York Powers of Attorney Can Result in Controversy

by Jules M. Haas

A Power of Attorney is a document that can be both useful and misused. New York General Obligations Law (“GOL”) section 5-1501 and the sections of the law that follow set forth the basic provisions regarding the Power. Paragraph 2(j) of Section 5-1501 defines the Power of Attorney as “a written document . . . .by which a principal with capacity designates an agent to act on his or her behalf.”

A New York Estate Lawyer is familiar with the use of the Power in estate and advanced planning. When the principal appoints an agent, the appointed party is given the various powers or authority that are specified in the Power. In the event the principal becomes incapacitated or unable to handle his property management functions the Power enables his agent to act on his behalf. The existence of a valid Power may obriate the need for an Article 81 Guardianship proceeding.

April 30, 2014

New York Fiduciaries Such as Guardians and Executors Must Account for Their Actions and Obligations

by Jules M. Haas

A fiduciary can be found in any number of different roles. The Surrogate’s Court can appoint a New York Executor or Administrator to handle the affairs of a decedent’s estate. The New York Supreme Court can appoint an Article 81 Guardian to be responsible for the property management and personal needs of an incapacitated person. In all of these situations the appointed party is a fiduciary who has obligations and responsibilities. The actions and performance of all fiduciaries are subject to review by the Court which typically occurs when the fiduciary prepares an accounting reflecting the transactions that have occurred during the tenure of the accounting party. All persons interested in the matter have a right to review the accounting and to file objections concerning issues they believe constitute a breach of a fiduciary duty. There have been a number of recent court cases which provide interesting examples of the process of reviewing the propriety of fiduciary conduct.

Matter of Flynn was a case involving an accounting by an Article 81 Guardian. Flynn was decided by Brooklyn Supreme Court Justice Michael L. Pesce on March 20, 2014. A son of the incapacitated person filed Objections to the Guardian’s account essentially asserting that the use by the Guardian of in trust for accounts (“Totten Trusts”), which named the son as beneficiary, was improper. After reviewing the evidence, the Court found that the Guardian’s use of these accounts, even without prior Court approval, was appropriate since the funds were needed and used for the interests of the incapacitated person. The Court also found that the Guardian’s selection of a nursing home to which the funds were paid was also appropriate and did not waste the funds. The Court dismissed the Objections as being without merit. Continue reading

April 23, 2014

A New York Fiduciary May Commence a Proceeding to Recover Property Withheld From an Estate

by Jules M. Haas

Following the death of a decedent, proceedings in the Surrogate’s Court are often begun for the appointment of an Executor or Administrator. As discussed in many past posts in the New York Probate Lawyer Blog, an Executor is appointed when a Will is admitted to probate and letters testamentary are issued. If a person dies without a Will, he is said to have died intestate and the Court then issues letters of administration to the administrator. The administrator is determined according to statutory priority of kinship pursuant to Surrogate’s Court Procedure Act (SCPA) 1001 entitled “Order of priority for granting letters of administration”.

New York estate lawyers are aware that an estate fiduciary has many responsibilities including locating and collecting estate assets. Sometimes it may occur that an asset belonging to the estate is being withheld or has been wrongfully taken by a third party. There are provisions in the SCPA that can be utilized by a fiduciary to discover and recover these assets from the third party. Continue reading

April 16, 2014

New York Wills Should Be Carefully Written to Avoid Confusion and Estate Litigation

by Jules M. Haas

Estate Planning attorneys are aware that it is important for a person to prepare a Last Will, Living Will, Health Care Proxy and other appropriate papers regarding advance directives and financial planning. The New York Probate Lawyer Blog has had many posts regarding these matters. Among the essentials to develop a good plan, a person should spend time reviewing with his advisors the assets that are owned, the identity of the relatives or other persons that are to receive a beneficial interest, and the amounts and manner in which each beneficiary is to receive his interest. Numerous considerations also include the impact of taxes and the utilization of trusts and other planning methods.

No matter what kind of estate plan is developed, it is essential that the creator’s intent be clearly and explicitly set out in the various documents that are signed. Estate litigation in the New York Surrogate’s Court invariably results when the wording in a paper, such as a Last Will, is not clear or complete. An example of the consequences of missing or unclear language in a Will appeared in a decision on March 19, 2014 by Manhattan Surrogate Rita Mella in Will of Isasi-Diaz. Continue reading

April 9, 2014

New York Estate Planning Involves Many Considerations

by Jules M. Haas

Planning your estate requires the consideration of many factors. A primary consideration is preparing and executing a Last Will. New York Estate Lawyers are familiar with the basic requirements for creating a valid Will. As set forth in Estates, Powers and Trusts Law Section 3-2.1 a Will should be in writing; signed at the end by the testator and there should be at least two attesting witnesses.

The dispositions that appear in a Will typically are in the form of bequests of specific property or certain sums or percentages of assets as well as a catch all or residuary clause for the balance of an estate.

There are many aspects involved in preparing a Will which include mapping out the appropriate dispositions and including clauses that might create testamentary trusts, the appointment of executors and trustees and tax provisions to lessen the burden of estate taxes. All of these items should be carefully reviewed by the testator with a professional estate planning advisor so that a person’s intentions for the transfer of his estate are properly formulated and effectuated. Continue reading

April 2, 2014

New York Guardianship Laws and Advanced Planning Can Prevent Elder Abuse

by Jules M. Haas

The New York Probate Lawyer Blog has had previous posts concerning the issue of elder abuse. A recent survey released by the National Association of Professional Geriatric Care Managers reported that the financial exploitation of the elderly is a growing and ongoing problem. The survey found that the top areas of abuse included theft of money and property by family, friends, neighbors and care-givers. Also, using deception to obtain the signature of the senior on a deed, a Will or power of attorney was a top form of abuse.

A New York Guardianship Lawyer is familiar with the provisions of Article 81 of the Mental Hygiene Law (MHL) that can help to protect an older person from being taken advantage of. MHL Section 81.29 allows a Court to void a deed, a power of attorney, a trust or health care proxy if the Court finds that a person did not have the required capacity to sign these papers. Additionally, a Guardian of a person’s property has the authority to recover assets that were wrongfully taken from an incapacitated person by commencing a Court action against the wrongdoer. The Guardianship proceeding allows the Court to make a full review as to whether the alleged incapacitated person is able to adequately protect his rights and whether the individuals who are interacting with the AIP are doing so in a fair and proper manner. Continue reading

March 27, 2014

The New York Surrogate’s Courts Determine Many Different Issues Concerning Decedent’s Estates

by Jules M. Haas

There are numerous and diverse matters that are presented to the Surrogate’s Court for resolution. In the Manhattan Surrogate’s Court, the Queens Surrogate’s Court and the Brooklyn Surrogate’s Court, just to name a few, cases are presented regarding a variety of estate administration and estate settlement controversies. A review of some recent Court decisions provides insight into these disputes. Will of Ida Seals was decided by Erie County Surrogate Barbara Howe on March 10, 2014. This case involved a petition by the niece of a decedent to have the Court declare that a son of the decedent who was a named beneficiary in her Will was deceased since the son had been “absent” or not heard from since in or about 1980. New York Estates, Powers and Trusts Law (EPTL) Section 2-1.7 entitled “Presumption of death from absence; effect of exposure to specific peril”, allows the Court to presume that a person is deceased under certain circumstances. The Surrogate refused to invoke the presumption and to find that the son was deceased. Instead, the Court found that the petitioner failed to sufficiently demonstrate that a diligent search was performed to provide a substantive basis for presuming the son’s death. The petition was dismissed without prejudice for a later determination during the proceeding settling the fiduciary’s account.

Testament of Raffe is another recent case which was decided by Nassau Surrogate Edward McCarty III on March 7, 2014. In Raffe the objectants to an accounting filed by a testamentary trustee asked the Court for an Order restraining the trustee from providing or using any additional trust funds to operate a home heating oil business that was owned by the trust. The objectants asserted that the business was a failure and that the trust funds were being wasted. After considering the various factors involved to support a preliminary injunction, the Surrogate refused to allow the restraint. The Court found that any monetary harm could be rectified by a surcharge against the trustee and that economic loss that could be recognized in terms of money damages would not constitute the irreparable harm needed for an injunction. Continue reading

March 12, 2014

New York Estate Litigation Frequently Involves Real Estate

by Jules M. Haas

Real estate is typically one of the most valuable assets comprising a decedent’s estate. Typically, a person’s residential house is a major asset. Many individuals also own commercial properties that may be used as a part of a business or may contain tenants. In view of the large worth of real estate assets it is common that the property is at the center of many estate battles.

A common occurrence appears to involve a pre-death transfer of the real estate interest to one person to the exclusion of others who would otherwise receive the property pursuant to a Last Will or through their rights of intestacy as a distributee of a decedent. Moreover, these lifetime transfers often occur when the decedent is elderly and suffers from physical or psychological conditions. Also, the deeds may be executed by persons acting as an attorney-in-fact under a power of attorney. Since these changes in property ownership appear to be improper and deprive potential beneficiaries of valuable inheritance rights, lawsuits in the Surrogate’s Court and Supreme Court frequently occur concerning ownership rights and the validity of the deeds reflecting the transfers.

A recent case decided by Kings County Justice Francois A. Rivera on February 20, 2014 provides a good example of a controversy created by real estate owned by a decedent. In Juliano v. Juliano, the decedent (“Beatrice”) had owned a home in Brooklyn where she lived with some of her adult children. Beatrice had made a Last Will in which she left her entire estate, which included the house, to her four children in equal shares. Approximately 6 years prior to her death it appears that Beatrice signed a deed transferring her entire interest in the house to her son to the exclusion of the other 3 children. However, it seems that the son receiving the property (“Frank”) did not accept or record the deed at the time it was signed by Beatrice but waited about 6 years to record it.

Interestingly, the Court voided the deed because it found that the gift was not effective due to the lack of proper acceptance by Frank at the time the deed was made. Additionally, although the Court found that there was a confidential relationship between Beatrice and Frank that would have provided a basis for a finding of undue influence, the Court declined to void the transaction on that ground since it had determined the deed was invalid due to the lack of acceptance.

As an estate litigation attorney, I have represented numerous individuals in situations where issues have arisen concerning the alleged improper transfer of real estate and other assets from a decedent to a family member or to a third party. These cases are typically presented in Surrogate’s Court proceedings and Supreme Court proceedings. Sometimes the issue is raised before a person dies and is litigated in a Guardianship case. The Guardianship Court has the power to void deeds and other transactions it finds to be improper due to the abuse of a power of attorney or the incapacity of persons making the transfer.