New York Probate Lawyer Blog

August 7, 2013

A New York Supplemental Needs Trust Can Preserve Estate Assets for an Incapacitated Person

A New York Supplemental Needs Trust (“SNT”) is a trust that allows trust funds to be available for a person who is receiving government benefits such as Medicaid or Social Security Disability (“SSD”). The governmental payments continue and are not reduced or terminated despite the existence of the trust fund. While the government sometimes may be entitled to claim a re-payment upon the death of the beneficiary, the beneficiary can utilize both the government and trust resources during life in furtherance of their quality of life.

A SNT is typically needed where a person is disabled or incapacitated and is the recipient of governmental assistance. New York Estates, Powers and Trusts Law (“EPTL”) Section 7-1.12 provides the statutory details as to the trust requirements. New York Estate and Guardianship Lawyers generally become aware that there are many different situations where a SNT can preserve assets to be used for incapacitated individuals. For example, there are situations where a person may be injured due to an accident or medical procedure and ultimately receive a large monetary award for the injuries they suffer. Sometimes the injuries also result in an incapacity that would allow the person to qualify for benefits such as Medicaid or SSD if they did not have any personal assets. In order to prevent the monetary settlement from disqualifying the person from receiving the benefits, the settlement proceeds can be placed into a SNT. The SNT trustee can then use the SNT funds in his discretion to provide additional care and benefits which are not provided through the government payments.

Many situations where a SNT is needed may involve Court proceedings such as Article 81 Guardianships in the Supreme Court or Estate Administration in the Surrogate’s Court. In these matters, the Court is asked to authorize and allow the creation of the SNT and the transfer of the funds to the SNT trustee. Court authorization allows the funds to pass directly to the trust and avoid having the incapacitated person receive these monies which would otherwise result in the disqualification or termination of the governmental benefits.

A recent case in the Nassau Surrogate’s Court is a typical example of the use and benefit of a SNT. Matter of Krushnauckas, decided by Surrogate Edward McCarty III on June 28, 2013, and reported in the New York Law Journal on August 8, 2013, concerned the estate of an individual, Adrienne, who died intestate leaving a daughter named, Michele. Michele was 56 years of age and was mentally retarded and was receiving governmental benefits in the form of Medicaid and Supplemental Security Income. Michele’s Property Management Guardian was the Public Administrator who requested that the Court approve a SNT for the approximately $400,000 estate distribution that Michele was entitled to receive. By placing the inheritance into the SNT, Michele’s Medicaid and SSI would not be affected. After reviewing the general benefits and reasons for establishing a SNT along with some issues regarding payback of benefits, the Court authorized the establishment of the trust.

The effective planning and use of a SNT in Article 81 Guardianship proceedings and Estate Settlement matters can create tremendous benefits and promote the quality of life for persons suffering from disabilities and incapacity.

July 31, 2013

New York Executors, Administrators and Trustees are Entitled to be Paid Commissions

by Jules M. Haas

New York Estate Lawyers regularly prepare Last Wills and Trusts for their clients. One item that is typically discussed is the amount of commissions or fees that an Executor, Administrator or Trustee may be paid. The primary source for the allowance and calculation of fiduciary commissions is Article 23 of the New York Surrogate’s Court Procedure Act (“SCPA”).

Section 2307 of the SCPA entitled “Commissions of fiduciaries other than trustees” relates primarily to Executors and Administrators. While the section and the implementation of its rules is rather complex, the simple formulas established are that commissions are paid at the rate of 5% of the first $100,000; 4% for the next $200,000; 3% for the next $700,000; 2½% for the next $4,000,000; and 2% for all sums above $5,000,000. Other parts of the statute provide that the fiduciary is allowed to be reimbursed for the reasonable and necessary expenses that he pays. Also, if the fiduciary collects rents and manages real property, he is entitled to receive an additional 5% of the gross rents he collects. If the value of the estate is more than $300,000 and there are multiple co-fiduciaries, each fiduciary (up to 3 in number) can receive a full commission.

Clearly, the amount of commissions that a single or multiple fiduciaries can receive can have an impact on the funds that are ultimately paid to the beneficiaries. Therefore, when creating an estate plan, it is important to consider the effect the payment of commissions may have. Not only is there the financial consideration whereby the net estate available for the beneficiaries is reduced, commissions may result in unknowingly benefiting one beneficiary over another. For example, if a decedent wants to name only one of his children as an Executor, the child who acts as Executor may end up with a larger share of the estate due to the up-front payment to him of commissions. This result may be unintended if the Executor child was only named for convenience because he or she lived in New York while the other children resided elsewhere.

SCPA 2309 entitled “Commissions of Trustees under wills of persons dying, or lifetime trusts established, after August 31, 1956” provides the basic guidelines for the payment of Trustees commissions. When selecting any fiduciary such as an Executor or Trustee, there are many considerations to be taken into account. In addition to the estimated amount and possible financial impact of commissions, the creator of a Will or Trust must have the utmost confidence that the fiduciary will perform his duties properly and carryout the intentions of the creator. As can be seen from many previous posts in the New York Probate Lawyer Blog, fiduciaries have many responsibilities and can face many complex and intricate problems such as Estate Tax issues and Estate claims. While fiduciary commissions may be well earned compensation, it is still important to consider and plan an estate and trust bearing in mind the commissions that may be paid.

An additional factor that may be important to consider when reviewing potential commissions is that the payment of fiduciary commissions is typically a deductible expense for Estate Taxes. Also, fiduciary commissions are usually taxable as income to the fiduciary whereas beneficiary distributions from an estate are commonly received income tax free. Therefore, a fiduciary may be better off from an income tax standpoint to receive his beneficial share in full rather than receive an upfront payment of a taxable commission which would reduce his non-taxable beneficiary payment.

July 24, 2013

New York Estate Planning Documents Prevent Confusion Concerning Transfer of Assets

by Jules M. Haas

The New York Probate Lawyer Blog has posted many articles concerning the need for thoughtful and specific estate planning. The many documents that can be used for advanced directives and post-death plans include a Living Trust, Health Care Proxy, Last Will, Living Will and Power of Attorney.

The failure of a person to provide any documented directions or intentions can result in the disposition of assets to unintended beneficiaries through intestacy and disputes regarding a person’s care and property management in the case of incapacity. Even when estate planning documents are put into place, Will provisions that are ambiguous or confusing can result in estate litigation in the form of a Will construction proceeding.

In addition, there are many instances where, despite the preparation and execution of planning documents, disgruntled heirs, relatives and other individuals may claim that the decedent had promised or agreed to provide for them notwithstanding the absence of such provisions in a Will or a Trust. An interesting example of such a situation was presented to the Nassau Surrogate’s Court in Will of Irving Lublin , decided on June 26, 2013 and reported in the New York Law Journal on July 22, 2013. In Lublin Nassau Surrogate Edward McCarty III was presented with a Last Will that left the decedent’s entire estate to the decedent’s wife and son. The decedent’s daughter commenced a lawsuit claiming that her grandfather had an oral agreement with the decedent by which the grandfather agreed to transfer the family business to the decedent and the decedent’s wife. In return the decedent allegedly agreed that he would care for the aggrieved daughter and ensure that she received her share of the business. The daughter now claimed that the business was wrongfully transferred to the decedent’s son.

After reviewing the evidence the Court determined that the alleged oral agreement was too vague to be enforceable. The Court also refused to impose a constructive trust due to the lack of specificity regarding the agreement.

Lublin presents an example of a common situation where individuals have an expectation based upon lifetime promises or understandings with a decedent, and end up being disappointed when those expectations are not adequately expressed in valid and enforceable documents. From an estate planning point of view, if the creator of a Trust or Will desires to benefit a person with a bequest or other property disposition, the Trust or Will should contain very specific provisions regarding the proposed transfer. Similarly, it is always best for a person not to state or infer promises that are not intended to be memorialized in an enforceable document. Such pronouncements can only create expectations for individuals who end up being hurt or dissatisfied upon learning that there have been no written provisions made for their benefit. These circumstances invariably lead to litigation in an estate and unnecessary complications for estate administration.

July 17, 2013

New York Surrogate’s Court Has Authority to Evict Occupants of Estate and Trust Property

by Jules M. Haas

The administration of a decedent’s estate is primarily under the authority of the New York Surrogate’s Court. These courts also supervise testamentary trusts and, in many cases, inter vivos trusts, as well. A testamentary trust is a trust that is created by a decedent’s Last Will.

As can be imagined, there are many diverse issues that a decedent’s estate may be involved with. For example, the decedent may have been the owner of a business. There can be issues and disputes concerning the business operations that a rise after death.

Additionally, matters concerning the determination and collection of assets and controversies regarding a decedent’s debts and obligations are all part of the multitude of issues that the Surrogate’s Court can be called upon to determine.

The jurisdiction of the Court to review issues that affect an estate is very broad and sometimes it is surprising that the Surrogate’s Court has authority to rule on a particular controversy. One such area that falls into this category is summary eviction proceedings. In most localities in New York, there are specifically designated Courts in which landlord-tenant matters and evictions are heard. In New York City, each of the counties, such as Queens and Brooklyn, have landlord-tenant parts in the New York City Civil Court.

It is very common that when a person dies owning real estate such property is occupied by third parties. The occupant may be an unrelated tenant or even a family member who was living at the property with the decedent or otherwise with the decedent’s consent. There are many cases where a decedent may have allowed a relative to live in a house for decades. However, after a person dies, if the real estate is titled in the decedent’s name alone, the property may become part of the decedent’s estate and its sale may be necessary to pay estate bills, a mortgage or to distribute the property value amongst numerous estate beneficiaries.

Problems arise when the occupant refuses to vacate the property. The fiduciary, who has the responsibility to manage the property, is then faced with the task of having to evict the occupant so that estate or trust affairs can be taken care of. In these cases the first thought might be to file a petition in the local landlord-tenant Court. However, the Surrogate’s Courts have acknowledged that the eviction proceeding can be commenced in such Court since the matter affects the administration of the estate or trust affairs.

A recent case entitled Matter of Katherine Boyer decided by Surrogate James Pagones (Surrogate’s Court, Dutchess County) on June 7, 2013 and reported in the New York Law Journal on June 14, 2013, addressed this very issue. In Boyer, a property owned by the decedent was transferred under the decedent’s Last Will to the trustees of a testamentary trust. The trustees brought a proceeding in the Surrogate’s Court seeking the eviction of the occupant who was living in the property. The Court found that the property was owned by the trust and also issued a warrant of eviction against the occupant.

July 10, 2013

New York Accountings May Be Compelled by the Surrogate’s Court

by Jules M. Haas

A New York Executor, Administrator or Trustee has many powers and obligations. As a fiduciary, such appointments require that a full record and account of activities be maintained so that an accounting can be provided to the estate or trust beneficiaries.

It is not uncommon for a beneficiary to complain that he did not receive either an accounting from a fiduciary or the full share of assets that he feels he was entitled to. The New York Probate Lawyer Blog has discussed in previous posts that the Surrogate’s Court Procedure Act (“SCPA”) provides a remedy when a beneficiary asserts that an accounting has not been provided. SCPA 2205 sets forth that the Court may issue an order that requires a fiduciary to file an account. Typically, the aggrieved beneficiary will prepare and file a Petition with the Court and a Citation is issued directing the fiduciary to appear in Court and state why he should not be required to file the account. Since the preparation of an accounting is fundamental to the completion of the fiduciary’s job, the Surrogate will almost always require the filing. If the fiduciary fails to appear on the Court date or does not comply with the Order to file, the Court may suspend or remove the fiduciary.

A New York Estate Attorney will usually represent an Executor, Administrator or Trustee in an accounting proceeding. Very often, the services of a fiduciary accountant are used to prepare the detailed schedules that are part of the papers to be given to the beneficiary and the Court. The schedules must be in accordance with the requirements of the estate rules. SCPA contains an Official Form 12 which is an Account of Executors and Administrators. Official Form 13 is an Account for Trustees.

While the Surrogate usually directs a court filing of a formal accounting, the Court appears to have some leeway in its determination. A recent decision by New York Surrogate Nora Anderson entitled Estate of Jean Kennedy decided on June 12, 2013 and reported in the New York Law Journal on June 21, 2013 is instructive. In Kennedy, Surrogate Anderson declined to require an Executor/Trustee to file a formal judicial accounting. The Judge ruled that such filing would not be in the best interest of the estate at the present time since the fiduciary had provided an informal accounting, was willing to provide the beneficiary with all requested financial information and it appeared that the beneficiary’s interests had already been satisfied with other assets.

I have found that a claim of breach of fiduciary duties and the failure to account to a beneficiary are very common aspect of Estate Litigation in the Surrogate’s Courts. While the New York Estate laws are very helpful and protective of the interests of beneficiaries, the Kennedy case shows that judicial decisions often reflect the needs of the particular facts and circumstances of the case.

Therefore, consultation with a New York Trusts and Estate Lawyer regarding fiduciary breaches and accounting requirements is important in order to present a matter to the Court in an appropriate fashion. As they say, one size does not fit all.

July 3, 2013

Estate Property Rights May Seem to Never Expire

by Jules M. Haas

The New York Estate Settlement process begins upon the death of an individual. Clearly, a person’s demise signals what seems to be an end to that person’s affairs and the settlement or winding up of matters and the distribution of estate assets. However, as shown in many posts in the New York Probate Lawyer Blog, a person’s death may initiate and involve events and issues that can continue for years or even decades.

Many aspects of the administration of a New York Estate can seem never-ending. For example, Estate Litigation involving Will Contests can delay the finalization of an estate for many years and involve proceedings in the Surrogate’s Courts. Many other disputes concern the ownership of a decedent’s assets. These controversies can take many different forms. A recent case decided by Kings County Surrogate Margarita Lopez-Torres on May 23, 2013 entitled Matter of Hasan related to the ownership of certain real property. In Hasan, the decedent had been a co-owner of property as a tenant-in-common. Thus, the decedent’s interest in the real estate passed to his heirs at law subject to necessary estate administration rather than to a co-owner as would have occurred if the property was held jointly with rights of survivorship. As discussed in the decision, after the decedent’s death, various deeds were executed transferring the decedent’s interest in the property without proper authority. After much litigation before the Surrogate, the Court declared these deeds null and void.

Other estate asset rights may result in the perpetuation of estate matters. These rights may involve interests in a business, copyrights, trademarks and rights of publicity. As reported by Eriq Gardner in the Hollywood Reporter, Esq., on June 4, 2013, the heirs of the late film star Lon Chaney, Jr. commenced a lawsuit against Universal Studios. The lawsuit seeks damages for the improper exploitation of Mr. Chaney’s likeness. The film star died in 1973 and was famous for his role in many horror movies of the 1930’s and 1940’s such as the Wolf Man.

In another recent lawsuit, the Andy Warhol Foundation had claimed that artwork from a Warhol album cover from 1967 was protected by copyright and trademark laws and was being improperly exploited. As reported by Eriq Gardner in the Hollywood Reporter, Esq., on May 29, 2013, the parties had recently settled this Federal lawsuit.

As can be seen from the cases discussed and many other posts in this Blog, the settlement of a person’s affairs can be many times more complicated after they die than when they were alive. New York Estate Planning may be very helpful in avoiding some of the most complicated post-death issues. It is imperative that a full exploration and understanding of a person’s assets takes place when preparing an estate plan. Appropriate steps can then be implemented to provide for proper administration of property rights after death and to cure any defects or clarify any documents such as deeds, or copyright and trademark filings, so that disputes can be avoided.

June 26, 2013

A New York Living Trust Can Provide Benefits to an Estate Plan

by Jules M. Haas

Living Trusts in New York present a number of beneficial options for a person’s Estate Planning. The basic planning and Advanced Directive documents begin with a Last Will, Health Care Proxy and Living Will and Power of Attorney. However, these papers may not meet all of the needs in a particular situation.

For example, a Last Will can provide for the disposition of a person’s assets in many different ways through provisions for bequests of stated monetary sums, or the specific devise of particular real estate, or a gift of a percentage of the estate. Also, a Last Will can create testamentary trusts to take advantage of estate tax planning methods or provide protection for minor children or beneficiaries who are incapacitated. However, in order for a Last Will to become validated and effective it must be filed with the Surrogate’s Court and admitted to probate. The Probate Process is typically not a barrier to a smooth estate settlement particularly where all of the interested parties involved are close family members and there is no antagonism between the parties. Unfortunately, there are many situations where conflict and complexity may hinder or interfere with probate.

A Living Trust may be used to avoid some of the Probate issues and other lifetime problems which are identified below. These items include the following:

(a) Identification of distributees (next of kin) – when a Will is offered for probate the New York estate laws and rules provides that the Court be given specific details regarding a person’s next of kin. Determining this information may be difficult particularly in situations where the decedent has not had contact with any family members for decades and may have been born outside of the United States. I recall one situation where a person who was preparing their estate plan had been brought up in foster care and had no knowledge as to his biological family. The administration of a Living Trust does not require the identification of next of kin. Upon the death of a decedent the Trustee of the trust is typically authorized to distribute the trust assets to the trust beneficiaries without any Court proceedings or any search for, or notice to, the decedent’s living heirs. The provisions for distributions under the Trust would be exactly the same as set forth in the Last Will.

(b) Avoidance of Will Contests – since the administration and distribution of trust assets does not require identifying or notifying next of kin or the commencement of a Surrogate’s Court Probate Proceeding, it is less likely that a disgruntled heir will challenge the validity of a decedent’s trust or estate plan. It is rather easy for an unhappy disinherited individual who received a notice of the Probate Proceeding to file Objections to Probate with the Court. While the validity of a Living Trust can be challenged, the person who wishes to do so must take an affirmative step and prepare Court papers and commence a new Court lawsuit to discredit the validity of the trust. Thus, a Living Trust may avoid the Contest of a Will.

(c) Management of Assets in the event of disability or incapacity – A Living Trust allows the Trustee to manage assets both before and after the death of the trust creator. A Living Trust is created during the lifetime of the creator and assets are transferred into the trust at that time. While the creator is usually the trustee of the trust, trust provisions can provide for a substitute trustee in the event the creator becomes disabled or incapacitated. This type of provision allows for a more comprehensive method to handle a person’s assets in the event of a disability. While a power of attorney can also be used to accomplish this task, the trust provides a more centralized and structured approach and reduces the problems associated with having a bank or other financial institution raise questions regarding the power of attorney. While banks and other financial institutions are now required to accept and follow the instructions of an appointed agent under a power of attorney [New York General Objection Law Section 5-1504 (2) and 5-1510(2)(i)], there are occasions where difficulties still arise. Additionally, by creating a lifetime advanced directive for asset management in the case of disability, on Article 81 Guardianship Proceeding may be avoided.

New York Estate Attorneys are familiar with the various benefits that provisions in a Living Trust can provide. Since each individual’s needs and intentions are different it is important to explore the possible advantages provided by including this type of trust in an estate plan. Not every situation calls for a trust, but when necessary, a Living Trust can expedite estate administration and avoid the time and expense of lengthy Court proceedings.

June 19, 2013

New York Beneficiary Designations Are Always an Important Aspect of Estate Planning

by Jules M. Haas

Many situations have arisen over the years regarding the validity and effect of a beneficiary designation or clause that has been provided by a decedent.

The naming of a beneficiary of an asset or property can appear in a variety of forms. A person who prepares a Last Will includes provisions in the document naming various beneficiaries. These beneficiaries may receive a bequest of a specific amount of money or a more general gift of a share of an estate. Many other beneficiary designations occur outside of a Last Will. A person can designate a beneficiary of a life insurance policy or a retirement fund such as an Individual Retirement Account or 401K plan. Additionally, bank accounts can have a designated beneficiary. Such accounts are commonly known as In Trust For or ITF accounts, or Totten Trusts. A person who is named a beneficiary on this type of account typically has no right to receive any of the account funds until the death of the account owner.

In previous blog posts, the New York Probate Lawyer Blog has discussed the many problems that can arise when proper attention is not paid to these various beneficiary designations. For example, the beneficiary designations on a retirement account results in that account being paid to a named person. Such payment may conflict with the decedent’s intentions in a Last Will that disposed of an estate to an entirely different person. Also, intervening events such as the death of a named beneficiary or a divorce or a change in relationship may cause designations to become stale and not reflect the true desires of the decedent. Such a situation recently reached the United States Supreme Court in a case entitled Hillman v. Maretta. In Hillman a decedent had named his spouse as the beneficiary of his Federal Group Life Insurance. After getting a divorce, the decedent did not change the beneficiary designation to eliminate the former spouse. When the decedent died, the former spouse filed a claim for the insurance proceeds. The Hillman case involved the law of the State of Virginia which had a statute that provides that any death benefit to a former spouse is deemed revoked. Unfortunately, under our Federal system of laws, Federal law pre-empts State law and the revocation aspect of the Virginia law could not change the Federal insurance provision which provided for payment of the insurance proceeds to the ex-spouse.

However, Virginia had an additional provision in its law which provided that in the event of pre-emption, a lawsuit could be brought in Virginia by the rightful beneficiary against the ex-spouse to turn over the insurance proceeds. In Hillman the Supreme Court was asked to determine whether this provision allowing for the lawsuit, was also subject to Federal pre-emption. The Court found that the statute was pre-empted by Federal law and that this sort of end around the Federal directive was not available to defeat the ex-spouse’s right to receive the insurance proceeds. It is noted that New York has a statute that also revokes dispositions in the event of a divorce in Estates, Powers and Trusts Law Section 5-1.4.

The Hillman case is a red flag for all persons when preparing their New York Estate Plan. All assets need to be reviewed so that a complete analysis can be made as to the ownership of the asset and the name of any beneficiary who may have been named as a recipient. This complete review is required in order to avoid Estate Litigation and to facilitate Estate Settlement so that a decedent’s intentions and desires are fulfilled.

June 12, 2013

New York Estates May Require That a Bond Be Filed with the Surrogate’s Court

by Jules M. Haas

There are two fundamental procedural avenues that are followed when initiating proceedings in the Surrogate’s Court to administer a decedent’s estate. If the person died testate (having left a Last Will), the proceedings concern the Probate of the purported Will. If the person died intestate (without a Will), the proceedings are determined to be an Administration of the estate.

It is fairly common that a fiduciary or beneficiary of an estate may receive information that the fiduciary must be bonded or receive a bond in order to complete his appointment by the Surrogate’s. Court. The bonding requirement of an Executor (when a Will is probated) or an Administrator (in an intestate estate) is not as mysterious as it may sound.

A bond is essentially an insurance policy issued by a surety company that provides security for the estate assets. If the fiduciary misappropriates or improperly takes estate assets, the bonding company may be required to reimburse the estate for the loss and, in turn, try to recover the lost assets from the fiduciary.

In view of the financial risk that a surety incurs by issuing a bond to a fiduciary, the surety company will require that the fiduciary have a solid financial and credit background. I have been involved in a number of matters where a person was approved by the Surrogate’s Court to act as an Executor or Administrator only to be rejected by the bonding company. If the prospective fiduciary cannot obtain the bond required by the Court, he most likely would need to forfeit his appointment in favor or an alternate fiduciary who can satisfy the bonding company.

The amount of the bond required by the Court depends upon many factors. Primarily, the value of the decedent’s estate is the starting point. The greater the value of the assets, the larger the required bond. The bonding company will charge the estate an annual premium for the cost of the bond. The larger the amount of the bond, the larger the premium cost.

It is not uncommon to see standard language in a Last Will to the effect that the requirement of obtaining a bond by the Executor is waived. In most probate matters, the Court does not require the posting of a bond. However, there are a number of situations where even in probate proceedings the Court may require that a bond be filed with the Court as a condition to the fiduciary’s appointment. For example, if the Court is asked to issue Preliminary Letters Testamentary, Surrogate’s Court Procedure Act (SCPA) Section 1412(5) gives the Court discretion to require a bond.

The appointment of an Administrator in an intestate estate usually requires the filing of a bond (SCPA 805), although the filing can sometimes be avoided if all of the estate beneficiaries agree that the filing be dispensed with.

After Estate Settlement has been completed, the fiduciary is required to make a final distribution of estate assets to estate beneficiaries. When all beneficiaries have signed a Release Form or the Court has issued a Decree settling the fiduciary’s Accounting, the bond will be terminated.

I have represented many fiduciaries who have been required by the Court to obtain a Surety Bond. New York Estate Attorneys typically contact various agencies that act as brokers in connection with the Bond Application Process. Since it is not always easy for persons to qualify for a bond, it is a good idea to speak with a bonding company before papers or Petitions are submitted for Probate or Intestate Administration to get a preliminary determination as to whether the person applying to be appointed as a fiduciary can qualify for a bond required by the Court. I work closely with my clients in all aspects of estate administration and assist them with their bond applications.

June 5, 2013

Trust and Estate Disputes Often Involve a Variety of Issues

by Jules M. Haas

Controversies arising in Estate Planning, Estate Litigation and Estate Settlement involve a vast variety of issues. New York Estate Lawyers know that the many different problems that are found in the area of Trusts and Estates are as diverse and complex as the individuals whose lives are impacted by them. In today’s blog post, I will take the opportunity to discuss some recent examples of controversies with the goal of providing some insight into the different issues and problems each portrays.

The New York Probate Lawyer Blog has discussed in prior posts that a New York Executor or Administrator has an obligation to discover and to collect the assets of a decedent. This “marshaling” of estate property is one of a fiduciary’s jobs when engaging in the settlement of an estate. An interesting approach was taken by one estate administrator who sued Wells Fargo Bank for wrongful death, elder abuse and other grounds for causing a decedent’s death. In an article by Matt Reynolds in AlterNet dated May 14, 2013, it was reported that Wells Fargo’s alleged improper foreclosure action resulted in the decedent’s death after he collapsed in the courtroom in an attempt to oppose the bank’s action. The estate Administrator then sued the bank claiming that it should pay damages for commencing a negligent and wrongful and malicious foreclosure action.

As can be seen from the Wells Fargo case, the assets or potential assets of a decedent are not always readily apparent. While it may be rather easy to discover and collect some estate property such as bank accounts, a fiduciary should investigate and consider all potential sources that might benefit the estate and its beneficiaries.

Another recent news story reported that a World War II veteran was attempting to prevent his daughter from evicting him from his home. As reported by Debra Cassens Weiss in the ABA Journal on May 16, 2013, the veteran had given his daughter a Power of Attorney whereupon the daughter transferred the vet’s house to herself and her husband. Despite claims of undue influence, the vet’s attempt to void the transfer was denied and now the daughter was seeking to evict him from the home.

The giving and use of a Power of Attorney should be carefully considered by both the Principal and the Agent or Attorney-in-Fact. While a Power of Attorney can be useful in estate planning and in avoiding Guardianship Proceedings, the person who is given the authority must be someone that can be trusted and relied upon without any doubt. Also, the person receiving the power has a fiduciary duty to act responsibly and any transfer of property by the Attorney-in-Fact to himself is considered improper.

Professional advice from a New York Estate Planning Lawyer can be very helpful in considering and preparing a New York Power of Attorney.