New York Probate Lawyer Blog

August 27, 2014

New York Will and Other Estate Planning Papers Should be Properly Stored

A New York Estate Plan can involve the preparation and execution of a number of different papers. To begin with, it is important that an individual consider advance planning documents which include a Durable Power of Attorney, a Living Will and a Health Care Proxy. Advance planning allows a person to select the agents that can make property and personal needs decisions and the documents can provide directions and an expression of intent as to the manner in which a persons affairs are to be handled. Additionally, such papers can help avoid the necessity of obtaining the appointment of an Article 81 Guardian.

Another consideration is the creation of a Living Trust which can provide both lifetime and post-death provisions for property disposition. Finally, a Last Will provides for the manner in which a decedent’s administration estate is to be settled and distributed. A Last Will can contain many different types of bequests and can provide for tax planning and the creation of testamentary trusts including the creation of a Supplemental Needs Trust. Continue reading

August 19, 2014

New York Non-Marital Children May Lose Their Inheritance

by Jules M. Haas

New York Estate Lawyers are aware of the importance of proper estate planning. Such planning may include the preparation of a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. By creating the above papers a person can identify the individuals that they want to inherit their estate and supervise the disposition of their property and personal affairs.

In the course of estate settlement when a person dies without a Last Will or the creation of a Living Trust, the assets owned in his name may be distributed pursuant to the New York intestacy laws contained in Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1. However, where there are non-marital children, such individuals can inherit from their mother but must provide various forms of proof in order to inherit from their father. The New York Probate Lawyer Blog has discussed this issue in earlier posts. EPTL 4-1.2 entitled “Inheritance by non-marital children” states that inheritance from the non-marital father requires proof in various forms such as an order of filiation. Also, paternity can be shown by clear and convincing evidence from genetic marker testing or that the father “openly and notoriously acknowledged the child as his own. . . .” Continue reading

August 13, 2014

New York Advance Directives Can Avoid The Appointment of a Guardian

by Jules M. Haas

The New York Guardianship Law is contained in Article 81 of the Mental Hygiene Law (“MHL”). As discussed in numerous posts in the New York Probate Lawyer Blog, a Court will appoint a Guardian for an individual’s property management and personal needs if it determines that the person is incapacitated. The Guardianship law serves a very useful purpose in providing a process by which family members or others concerned about someone’s well-being can obtain assistance from the Court to protect a person who is unable to care for themself. There are many situations that can result in an incapacity such as an accident or an illness in the form of a stroke, heart attack or similar occurrence. Incapacity may also result from the onset of Alzheimer’s disease or dementia.

As noted in earlier posts, proper estate planning, which includes the use of advance directives such as a Power of Attorney, Health Care Proxy, Living Will and Living Trust, may avoid the need for a Court appointed Guardian. These advance directives allow a person to select their agents and representatives who are to have the authority to make property management and health care decisions without the need for a Guardianship proceeding and the appointment of a Guardian who may not have been a person’s first choice to handle his affairs. Continue reading

August 6, 2014

A New York Will Should Contain Clear Language to Create A Supplemental Needs Trust

by Jules M. Haas

A New York Estate Lawyer is familiar with the manner in which a Last Will should be prepared. Among the fundamental rules when drafting a Will is to make certain that the provisions clearly set forth the manner in which the testator intends to dispose of assets. The spelling of the names of beneficiaries should be correct along with their relation to the testator, such as a child, brother or friend. Other provisions such as those relating to the amount or percentage of a bequest need to be delineated and the terms of any testamentary trust or other instructions should be spelled out to avoid any confusion.

Unfortunately, there are many instances where the language of a Will or a Trust is unclear or ambiguous and estate litigation in the form of a Will construction proceeding is needed to resolve the controversy over the document’s meaning and the proper distribution of estate assets. In Matter of Romanello, decided by Manhattan Surrogate Nora Anderson on July 17, 2014, the Court was presented with a Last Will that contained a testamentary trust. Although the Will referred to the trust as a “special need trust fund,” the language of the trust did not comply with Estates, Powers and Trusts Law Section 7-1.12 which is entitled “Supplemental needs trusts established for persons with severe and chronic or persistent disabilities“. Continue reading

August 1, 2014

A New York No Contest Clause In a Will May Be Difficult to Interpret

by Jules M. Haas

A New York Estate Lawyer is familiar with the various provisions of the Estates, Powers and Trusts Law (“EPTL”) and the Surrogate’s Court Procedure Act (“SCPA”) that impact estate planning. One of the provisions of the law that has caused much controversy over the years concerns the commonly known “no contest clause”. Section 3-3.5 of the EPTL contains the authority and rules regarding these clauses. While the statute allows the use of this limiting language in a Will, the statute also provides some limitations. For example, EPTL 3-3.5 states that the contest provision is not breached when an infant or incompetent opposes probate. Thus, such individuals do not forfeit their inheritance under the Will. The statute also allows pre-objection discovery under SCPA 1404 as to the witnesses to the Will, the Will’s preparer, the nominated executor and the proponent without resulting in any loss of beneficiary status under the Will.

In many instances the language of a no-contest clause in a Will may be unclear as to the extent of the conduct resulting in a forfeiture. An interesting example requiring interpretation of such a clause was presented in Matter of Prevratil decided by the Appellate Division 3rd Dept. on July 24, 2014. In Prevratil, a disinherited son filed objections to the probate of a 2011 Will that had made no provision for him. The son had been the sole beneficiary to an earlier 2006 Will. The 2011 Will contained a no contest clause. Since the named executor of the 2011 Will initially refused to petition for its probate, the beneficiaries filed a petition for probate seeking letters of administration. The disinherited son asserted that the actions by the beneficiaries to have an administrator appointed circumvented the 2011 Will’s named executors and, therefore, amounted to a contest of the Will resulting in their forfeiture of their Will bequests. Continue reading

July 24, 2014

New York Will Contests Have Specific Rules and Procedures

by Jules M. Haas

The New York Probate process has been the subject of numerous posts in this blog. A Last Will that is prepared by a person must be admitted to probate or validated by the Surrogate’s Court so that the provisions of the Will become effective. The decedent’s distributes or next of kin must receive notice of the probate proceeding and they have a right to contest the Will. Usually, the distributees receive a paper called a Citation, which is like a summons, that advises them as to the date when the probate proceeding is to appear on the Court calendar. At that time, the distributees can file objections to the Will or ask for preliminary discovery that is allowed by Surrogate’s Court Procedure Act (“SCPA”) Section 1404.

There are many specific rules and procedures that apply to the process of contesting a Will. Some of these requirements have been the subject of recent Surrogate’s Court decisions. In Estate of Basil Constant, decided on June 30, 2014, Bronx Surrogate Nelida Malave-Gonzalez reviewed an application to expand what is known as the “3/2” rule. This rule is contained in section 207.27 of the New York Uniform Rules for Surrogate’s Court and provides that in connection with an examination before trial (i.e. discovery) such examination is limited to a period of time that is three years before the date of the Will and two years thereafter or the decedent’s date of death, whichever is shorter. While the examination period can be extended by Court Order, the Court needs to find special circumstances to expand the time periods. In Constant the Court did not allow an expansion of the time periods to allow an inquiry about an earlier Will that the decedent allegedly had made.

July 16, 2014

Estate Asset Rights Need to be Protected

by Jules M. Haas

The New York Probate Lawyer Blog has provided numerous posts discussing the need to identify, protect and collect estate assets. One of the fundamental obligations of an estate fiduciary such as an Executor or Administrator is to make certain that property belonging to the decedent is available for the benefit of estate beneficiaries. As discussed in earlier posts, a decedent may have owned assets of various types such as bank accounts, real estate, stocks and bonds. However, interests in other types of assets such as intellectual property rights, copyrights, trademarks and business interests need to be secured, as well. There have been a few recent reports detailing the efforts made to obtain estate protection for these less common variety of property interests.

In a post by Eriq Gardner on June 2, 2014 in the HollywoodReporter.com entitled “Here’s the Lawsuit Claiming Led Zeppelin Stole ‘Stairway to Heaven’, it is reported that heirs of a guitarist and songwriter have filed a copyright infringement claim against the Led Zeppelin rock group. The lawsuit, which dates back to events occurring 43 years ago, asserts that the Led Zeppelin group wrongfully used guitar music previously created by the claimant to write the iconic “Stairway to Heaven”.

July 9, 2014

New York Guardianships Can Involve Other State Proceedings

by Jules M. Haas

New York Guardianship cases, like those in other states, control issues regarding persons who are incapacitated within the jurisdiction of the local State Court. Mental Hygiene Law (“MHL”) 81.05 provides that a Guardianship proceeding shall be commenced in the county where the person alleged to be incapacitated (AIP) resides or is physically located. Generally, if an AIP or a person who has been found to be incapacitated (IP) physically moves to another state, a proceeding in the new state needs to be commenced for a guardianship appointment. Since Guardianship appointment jurisdiction has historically been local, families have faced tremendous hardship and confusion when an AIP or IP moves or is taken from state to state.

The New York Probate Lawyer Blog recently discussed a new law contained in Article 83 of the MHL that allows New York to participate with other states in transferring or accepting out of state guardianships. Thus, under the new law, a New York Court may accept a proceeding for a guardian that is transferred from another state. See MHL 83.33. Continue reading

July 2, 2014

New York Estates Often Involve Issues Concerning Condominium and Cooperative Apartments

by Jules M. Haas

In New York it is very common that a person will own a cooperative or condominium apartment. The rights to the apartment may be part of a decedent’s administration estate where the decedent was the sole owner of the unit. In cases where the unit is held jointly, the ownership interest would pass automatically to the joint owner.

When a cooperative or condominium unit becomes a part of the estate, the Executor or Administrator is responsible for maintaining and disposing of the unit. Thus, monthly common charges and maintenance must be paid. Additionally, the unit may be subject to other issues. For example, the actor Philip Seymour Hoffman recently died in February 2014. At the time of his death the actor owned a condominium unit in the West Village. As reported at NYdailynews.com in an article by Barbara Ross on June 5, 2014, another unit owner sued the late actor’s estate alleging that a flood from the actor’s apartment caused extensive damage to their unit. Continue reading

June 25, 2014

New York Guardians Have Obligations After the Death of the Incapacitated Person

by Jules M. Haas

A Guardian appointed under Article 81 of the New York Mental Hygiene Law (“MHL”) has many duties and responsibilities. As discussed in earlier posts in the New York Probate Lawyer Blog, an appointment can be for a Property Management Guardian and for a Personal Needs Guardian. Property Management guardian powers are set forth in MHL Section 81.21 and the personal needs powers are found in MHL Section 81.22.

Generally, when an incapacitated person dies, the authority of a Guardian ends. However, the administration responsibilities of a Guardian may continue in many forms depending upon the circumstances of the Guardianship. MHL Section 81.44 entitled “Proceedings upon the death of incapacitated person” sets out a number of rules. According to the statute a “statement of death” must be sent by the Guardian to the Court Examiner and to the estate personal representative. This representative would be an Executor or Administrator. Additionally, the Guardian must file a final account with the Court within 150 days after the death of the incapacitated person. Continue reading