New York Probate Lawyer Blog

April 11, 2012

Estate Litigation Often Involves the Decedent’s Interests in Real Estate

New York Estate Litigation can involve many aspects of Estate Settlement. Surrogate’s Court proceedings often concern issues such as the validity of a Last Will in a Will Contest. The identity of Estate Distributees may require a kinship hearing.

Controversies regarding the ownership of estate assets also presents many opportunities for litigation by parties represented by Trusts and Estates Attorneys. These disputes may involve claims by the estate that an individual has wrongfully obtained assets that should be turned over to the estate. Conversely, a person may claim that the decedent’s estate should return property that it is not entitled to claim ownership of. Whatever the circumstances, the issues can get complex and the time and expense expended by the Estate Executor or Administrator can be quite large. Of course, the best way to avoid these problems is to create a comprehensive Estate Plan before death. Clearly defining and resolving disputes concerning ownership of real estate and business interests while the decedent is alive is much more efficient than having to figure out what the deceased individual did or did not intend regarding these matters after death.

A good estate planning guide would include making a list of all assets and business interests owned. The next step should be to review and examine all of the papers relating to these assets such as deeds, shareholder agreements, stock certificates and operating agreements to determine what issues currently exist or may arise in the event of death that might effect the smooth disposition of these interests. Once these issues or problems are identified steps can be taken to try and eliminate any potential difficulties for administration in the decedent’s estate.

Recent cases decided by the New York Courts show that unresolved problems can drastically effect estate settlement and require the assistance of a New York estate litigation attorney. In Sealy v. Clifton LLC, decided by Kings County Surrogate Anthony Cutrona on March 21, 2012 and reported in the New York Law Journal on April 9, 2012, the decedent held an interest in a New York Limited Liability Company that owned investments in real estate. Litigation involved issues regarding the dissolution of the LLC following the decedent’s death and the estate’s interest relating to such dissolution. In Kanakos v. Kostakos decided by the Hon. Charles J. Markey (Supreme Court, Queens County) on March 20, 2012 and reported in the New York Law Journal on April 12, 2012, an estate distributee brought an action against the decedent’s brother claiming that the brother had wrongfully transferred and sold the decedent’s real estate prior to the decedent’s death. The Court dismissed these claims since the Court action was commenced by the distributee individually instead of on behalf of the decedent’s estate as a fiduciary.

As can be seen, estate litigation can be complex and the problems that arise often can be avoided by proper estate planning and guidance from a New York trusts and estates lawyer.

April 4, 2012

Estate Litigation Can Be Used by New York Trust and Estates Law Firms for Many Reasons

by Jules M. Haas

Estate litigation in New York can involve a countless number of issues. The situation that is most commonly recognized is the Contested Will or Will Contest. This type of trust and estate litigation usually gets newspaper headlines such as in the recent case of the Estate of Brooke Astor.

The typical Will litigation occurs in the New York State Surrogate’s Court and can involve issues concerning a decedent’s testamentary capacity or the proper execution of a Last Will or claims of undue influence that resulted in the disinheritance of close family members.

Another common form of estate litigation relates to the Accounting that an Estate Executor or Administrator must provide to estate beneficiaries when the estate is ready to be distributed. Objections to the Fiduciary Accounting can be filed by the estate beneficiaries concerning an alleged breach of fiduciary duty or the mishandling of assets.

Trust and Estate law firms in New York should be consulted by persons and organizations who have an interest in an estate to obtain advice as to whether appropriate estate litigation should be commenced to protect their rights. In a recent article by Lisa Brown on March 23, 2012 appearing in St. Louis Today, it was reported that Wells Fargo Bank was being sued for breach of fiduciary duty with regard to the loss of millions of dollars in Trust assets.

The New York Probate Lawyer Blog has previously talked about other areas where litigated Court proceedings may be needed. These areas include the following:

(a) A proceeding to compel the production of a Will which is provided by Surrogate’s Court Procedure Act (SCPA) 1401.

(b) A proceeding to Prove a Lost or Destroyed Will which is provided by SCPA 1407.

(c) Proceedings to determine distributees with regard to kinship proceedings or cousin cases, SCPA 2225.

(d) A proceeding to compel a fiduciary to file an Accounting which is provided by SCPA 2205.

As a New York estate lawyer I have represented clients in these and other Estate litigation matters. Many times an estate might be involved in Court litigation that results from events that were harmful to the decedent prior to death. A common type of case is a Wrongful Death action where monetary damages are sought due to some occurrence such as an automobile accident that caused the decedent’s death. The Daily News in an article by Erin Durkin dated March 16, 2012 reported that the family of a deceased New York City Judge was suing the nursing home where the Judge died claiming that the home was not licensed and had kept the Judge imprisoned there and failed to provide him with proper care.

It is important in every estate settlement to closely analyze whether estate litigation is needed to protect beneficiary and family member interests from fiduciary duty breaches or other problems that may arise.

March 28, 2012

New York Trust and Estate Lawyers Can Help Obtain Preliminary Letters Testamentary

by Jules M. Haas

The New York Probate process has many different aspects and requirements. The probate of a Last Will begins with the preparation of a Probate Petition which is to be filed with the Surrogate’s Court. Many of the basic Surrogate’s Court forms can be found online at www.nyccourts.gov/forms/surrogates. The petition is usually filed with the Surrogate’s Court in the County where the decedent was domiciled i.e, where he or she maintained a primary home. So depending upon the decedent’s home, there may be a Westchester County Probate or Nassau County Probate, etc.

The Probate Petition is required to contain: (i) information about the petitioner, who is usually the Executor named in the Will; (ii) information about the decedent such as date of death, address and citizenship; (iii) information about the purported Last Will such as its date and the names of the witnesses to the Will; (iv) the identity of the decedent’s distributees i.e., next of kin; and (v) information about the value of the personal and real property comprising the estate.

In many instances the probate of the Will may be delayed. Probate is essentially the method by which the decedent’s Will is validated as authentic by the Court so that the Will provisions control the disposition of the decedent’s estate assets. This delay may be due to a number of circumstances such as difficulty in determining the decedent’s distributees that raise issues regarding kinship or a Contested Will that might result in Surrogate’s Court litigation lasting many months or years.

New York Trust and Estates attorneys are familiar with these types of delays and regularly counsel the named Executor to apply to the Court for appointment as Preliminary Executor. A Preliminary Executor is a temporary executor that can be appointed while other issues affecting the probate of the Will are resolved. Surrogate’s Court Procedure Act 1412 entitled “Preliminary letters testamentary” provides for this type of appointment. A Preliminary Executor typically has most of the powers that an Executor would have after probate is complete. Thus, a Preliminary Executor can collect the decedent’s assets, open an estate bank account, file estate tax returns, pay bills and expenses and generally engage in all aspects of Estate Administration. However, the Preliminary Executor does not have the power to distribute assets to estate beneficiaries.

The Court has the authority to deny the application for Preliminary Letters in the best interest of the estate. For example, if Objections were filed to such appointment and the Court found that the proposed Preliminary Executor’s actions raised bona fide questions of undue influence, breach of fiduciary duties, or other wrongdoing, the Court could appoint someone other than the nominated Executor in the Will.

In most Surrogate’s Courts such as Manhattan or Queens Surrogate’s Court, the appointment of the Preliminary Executor is not a lengthy process. The Court must be advised as to the assets and liabilities of the estate and can require the appointee to obtain a Surety Bond.

March 21, 2012

Estate Accounting In New York Finalizes the Settlement Process

by Jules M. Haas

The estate settlement process in New York involves a number of stages. The first stage is typically the appointment of the fiduciary. Where the decedent has left a Last Will, the Will must be probated. Throughout New York such as in Westchester or the Bronx, probate in the Surrogate’s Court can involve kinship issues, Will contests or proving the validity of a lost Will.

When a person dies without a Will or intestate, the process of appointing a fiduciary is known as an Administration proceeding. Proper New York estate planning should be done to avoid intestacy. Where there is no Will, the decedent’s estate is distributed to his or her next of kin or “distributees”. Many of the problems that can be faced in Administration proceedings, such as kinship hearings, have been discussed in previous posts in the New York Probate Lawyer Blog.

After the initial stage of appointing a fiduciary, the next stage in estate settlement is the actual collection of estate assets and the payment of estate expenses such as taxes and debts. This stage involves many issues regarding the decedent’s affairs including estate tax determination and possible Court proceedings regarding disputes with estate creditors or claimants. The numerous tasks involved in marshaling the decedent’s assets and administering the estate affairs can take many months. Once this phase of the estate is completed, the time has come to distribute the estate assets to the beneficiaries.

This final stage typically involves the preparation of a full Accounting which specifies all of the transactions entered into by the Executor or Administrator during the course of the estate. An estate Accounting contains a number of parts called Schedules, each of which contains different information. One Schedule shows the assets that a fiduciary collected while another Schedule shows the various expenses that were paid. Another Schedule shows the amount of estate assets that are currently available for distribution.

After review of the Accounting, the estate beneficiaries often agree to approve the Accounting informally or without a separate Accounting Proceeding in Surrogate’s Court. However, if estate beneficiaries do not agree, the fiduciary would then file the Accounting with the Surrogate’s Court in Queens or Manhattan or whatever County the estate is being administered in. The estate beneficiaries can then file Objections to the Accounting and the Court will make the final determination as to the validity of the objections.

Objections to the Accounting can include such items as breaches of fiduciary duty for commingling assets or misappropriation of funds. Other objections can relate to improper payment of expenses or losses sustained due to the decline in value of an estate asset. Following the approval of the Accounting by the beneficiary or the determination of the Court as to any formal objections, the estate assets can be distributed and the estate settled. A recent case decided by Manhattan Surrogate Nora Anderson on March 6, 2012 and reported in the New York Law Journal on March 19, 2012 entitled Accounting of Chase Manhattan Bank, provides an example of the many types of issues that can be raised in a Surrogate’s Court Accounting. Although this case concerned an accounting by Trustees of a revocable inter vivos trust, the issues included claims of underpayment of distributions and wrongful payments.

Formal Court accountings are typically long and complex proceedings. Most estates are settled out of Court. However, it is important that the fiduciary keep and retain good records and report the estate transactions to the beneficiaries in a clear and concise manner. Such actions by the fiduciary should result in a smooth ending to estate administration and distribution of assets to estate beneficiaries.

March 14, 2012

New York Real Estate Is An Important Part of An Estate Plan

by Jules M. Haas

New York Estates and Trusts Law Firms deal with issues regarding real estate all the time. The ownership of real estate can take many forms. Queens County estates and Brooklyn estates are likely to have interests in single family houses. Manhattan estates commonly contain condominiums and cooperative apartments.

Regardless of the type of real estate interest owned, estate planning and estate administration requires that these interests be handled properly. The first step in planning for probate with real estate is to determine basic facts about the property. These facts include the following:

1. Identify the owner(s) of the property. Deeds and other certificates of ownership need to be examined to be certain that the person planning his or her estate (the “Testator”) has full right and title to the property. In many instances, a person may have inherited the property from another family member and the ownership interest may be held among a number of people.

In such a case, the testator can only transfer the share of the property he or she owns. Also, if the property is owned with others, say a spouse, in joint ownership, upon the death of the testator, title to the property passes directly to the joint owner and will not be controlled by the person’s Last Will. Thus, provisions in a Last Will giving the property to third parties other than the joint owner would not be effective.

Any and all issues regarding title and ownership should be investigated and resolved at the time the New York estate plan is being developed. This will save time and avoid the hardship of attempting to solve issues during estate settlement when the testator has already passed away and is not available to provide information that could assist in resolving the title issues.

2. Determine whether the property is subject to any liens or mortgages. It is important to anticipate the effect of the owner’s death on these outstanding obligations. For example, when the owner dies, will the decedent’s estate have enough liquid assets available to continue to pay the mortgage until the property is sold. Similarly, if the property is meant to be given by the Last Will to a named beneficiary and not sold, how is the mortgage to be paid?

The type of mortgage on the property is also a subject for review. It has become more popular for senior citizens to obtain reverse mortgages which may greatly reduce the value of the property available to be given to the estate beneficiaries. Also, a reverse mortgage may be required to be paid in full upon the owner’s death and the estate may not have the liquid funds to make this payment.

While mortgages and other liens reduce the amount of assets that the beneficiaries receive, such debt obligations are also estate tax deductions that can reduce the size of an estate for estate tax purposes. Understanding the value of the testator’s real property and the equity available after the payment of all liens is essential to planning an estate.

3. Determine the appropriate manner to give the property to the intended beneficiaries. Real estate is not only one of the most valuable assets in an estate, it often has the most personal attachments among family members. The testator’s home may have been owned by family members for generations and the decedent’s children may have all grown up in the house. Selling such an asset or allowing a family member who still lives there to remain in the home for years to come can cause bitter controversies. Planning for these types of situations is important to avoid disputes that destroy family harmony and end up in probate court litigation.

The Hartford Courant recently reported in a story by Denise Buff dated February 26, 2012 about a decedent who changed her Last Will shortly before death and left the family home to only two of her four children. The two excluded children asserted that the newest Last Will did not reflect their mother’s intent that the house be inherited by all four children and that the mother’s dementia allowed the mother to be subjected to influence to exclude them.

While the best estate plan cannot always prevent unforeseen or improper conduct on the part of others, it is important to put into place a plan that you will be certain reflects your intent and maintains the family harmony to the greatest extent possible.

March 7, 2012

New York Last Wills Should Express The Testator’s Intent

by Jules M. Haas

The preparation of a New York Last Will is an important part of a person’s overall financial plan. The initial step that should be taken is to fully assess and understand the goals that the person making the Will wants to achieve. This process can be summarized as formulating and clearly expressing the intentions that are to be spelled out in the Will provisions. For example, who are the persons that are to benefit from the Will provisions and in what manner or proportion are they to receive these benefits. Beneficiaries can vary from spouses and children to more distant relatives, friends and charities.

It is important at this juncture to keep the estate plan simple. The New York Probate Lawyer Blog recently discussed aspects of the Federal estate tax law such as “portability” of the marital deduction between spouses. While estate planning is essential, it is more important at the outset to develop the basic plan or intent regarding the individuals or organizations that the testator (the person to whom the Will belongs) wishes to benefit. The tax planning and Will structure can then be developed so as to promote or carry-out the basic intent. A Last Will that has complicated tax provisions and trusts may be a great legal document but it is not useful unless it gets the assets to pass to the intended beneficiaries in a clear and efficient manner. Simplicity has its virtues.

The recent death of pop-star Whitney Houston provides an example of a simple yet effective Last Will. It was recently reported by MTV in an article by Gil Kaufman dated March 8, 2012, that Whitney Houston’s Will was written in 1993. In the Will, Ms. Houston’s entire estate was left to her only child, her 19 year old daughter, Bobbi Kristina Brown. It seems that the Will provided for a Trust under which Bobbi is to receive some of the assets at age 21, then some at age 25 and the balance at age 30. Ms. Houston’s mother is named as Executor and her brother and sister-in-law are named as Trustees.

This type of plan is typical for persons with young children and provides a straight forward map for the Trustees to make periodic payments to a young person over time as they get aclamated to handling and being responsible for large sums of money following the death of a parent. I have drafted many Wills for clients which contained similar Testamentary Trusts.

Part of the process in planning is to consider an appropriate payment period since the ages at which Trust Funds can be paid to the Trust Beneficiary are completely within the discretion of the Testator to determine in the Will provisions. Trustees should also be given discretion to make additional payments to beneficiaries which allows the trust to have more flexibility and accommodate unforeseen events.

Last Wills, Health Care Proxies, Living Wills, Living Trusts and Testamentary Trusts all have provisions that express the intent of the creator of these documents. Formulating and then expressing one’s intentions is the first, and perhaps most important, step in creating an effective estate plan.

The extent to which a testator’s intentions can be measured has recently been the subject of a major estate litigation occurring in Massachusetts. As reported in the Portland Press Herald on February 25, 2012, a Massachusetts Merchant left a Will 351 years ago that provided for the nation’s oldest charitable trust in Ipswhich, Massachusetts to fund the local public schools. Recently, the trustees have attempted to forego the Will provisions and convert the local trust property comprised of cottages into condominiums. As reported in the article, the current residents have opposed this plan “saying it violates the sacred intent of Payne’s Will. . . .” As shown by this controversy, even after 351 years, a testator’s intent is still the foundation for the administration of the decedent’s estate.

February 29, 2012

New York Estate Settlement Requires the Payment of the Decedent’s Debts

by Jules M. Haas

The administration of a New York estate requires that estate fiduciaries, such as Executors and Administrators, determine and resolve debts that are left by a decedent.

Debts and liabilities can take many forms. A decedent may have owned a home or other real estate. Such assets can have mortgage debts as well as judgments or other unpaid monetary liens such as municipal environmental control board violations, building code penalties, mechanics liens and property tax assessments. The estate fiduciary is obligated to discover all of these liabilities, determine the amount that may be validly due and then formulate the best manner in which to satisfy the outstanding balances. It is very common for the decedents’ real estate to be sold and the sales proceeds used to pay off the liabilities that relate to the real estate such as the mortgage. However, the sale of the real estate may take many months or years depending upon the marketplace. Meanwhile, mortgage payments and taxes can continue to come due and accumulate. Foreclosure may be a real threat to preserving the value of the estate’s property. These are all problems and issues that an estate fiduciary must solve as part of his or her fiduciary duty.

Estate liabilities may also be in the form of business obligations such as leases, credit card bills, medical bills and pending lawsuits. Manhattan probate attorneys as well as estate attorneys throughout New York regularly advise and help their clients who are Executors and Administrators as to the manner in which to protect the decedent’s estate in these types of situations.

I have represented many individuals where it was necessary to uncover and investigate the validity of liabilities that could be costly to an estate. Working closely with clients, these issues are reviewed and resolved to protect the interests of the estate beneficiaries and satisfy the obligations of the fiduciary.

It should be recognized that the decedent’s obligations are generally only enforceable against the decedent’s estate. Estate beneficiaries are usually not liable for any of the decedent’s debts and the estate fiduciaries, such as Executors, are only liable for these debts as representatives of the estate. There is usually no personal liability on the part of the Executor or Administrator for a decedent’s debts. Moreover, a creditor cannot bring a lawsuit against the decedent’s estate until a fiduciary is appointed by the Court. In a recent case entitled Rotwein v. Murray, decided on February 15, 2012 by Judge Michael A. Ciaffa of the Nassau County District Court, and reported in the New York Law Journal on February 28, 2012, the Court dismissed a lawsuit by a doctor for medical services performed for a decedent prior to death. The doctor had sued the decedent’s wife as “Executor” of the estate. However, since the doctor failed to provide the Court with any proof that the wife, or anyone else had in fact been appointed as Executor, the lawsuit was dismissed. Rotwein shows that without the actual appointment of an estate fiduciary, there is no one who is authorized to represent the decedent’s estate that can be subjected to a lawsuit.

February 22, 2012

Estate Tax Rules Impact Estates of New York Decedents

by Jules M. Haas

New York estates are subject to many requirements relating to taxes. Estate taxes can have a major impact on the estate administration process since the estate fiduciary such as the Executor or Administrator is responsible for timely preparing the estate tax returns and paying the tax that may be due. New York decedent’s estates may be subject to both New York State and Federal Estate Tax.

The New York Probate Lawyer Blog has previously discussed revisions that were made to the Federal Estate Tax at the end of 2010. These new rules terminate at the end of 2012 unless extended or modified. Beginning in 2011 the basic amount of exclusion from the Federal Estate Tax was increased to $5,000,000 per individual. Under the new law, to the extent that the exclusion amount was not used for a deceased spouse, the unused amount could be transferred to the surviving spouse to be used to offset his or her estate tax. This transfer, called Portability, could conceivably allow the second to die spouse to have an exclusion of 10 million dollars.

In order to qualify for Portability, the Executor or Administrator of the first spouse to die must make an election on a timely filed Federal Estate Tax Return. A Federal Estate Tax Return is due to be filed within 9 months after death and a 6 month automatic extension can be applied for. The IRS recently issued a notice which provides additional time for filing the estate tax return for decedent’s who died during the first six months of 2011. See article by Michael Cohn dated February 17, 2012, “IRS Extends Deadline on Estate Tax Portability Election.” This extension of time would allow for the election of the portability option.

Fiduciary duties in settling an estate can be very extensive and complicated. Advise from probate attorneys and tax professionals is essential for an estate to be handled properly and efficiently. Estate assets need to be identified, valued and collected and bills, debts and other expenses paid. All of the estate financial information needs to be retained and organized so that it can be reported in the Estate tax return and accounting papers. Failure by a fiduciary to properly handle these financial and estate tax matters can result in damage to an estate and a breach of fiduciary duty for which a fiduciary may incur personal liability.

I have represented many fiduciaries over the years and assisted them with the numerous estate settlement tasks and tax reporting duties that they are responsible for completing. The welfare and interests of the estate beneficiaries are of utmost importance and it is essential to protect these interests by effectively processing the estate finances.

February 15, 2012

A New York Last Will May Require Proof Of Kinship

by Jules M. Haas

The New York Probate Lawyer Blog has discussed different areas concerning estates of decedents such as Last Wills, Kinship, Probate and Administration, as well as Article 81 Guardianships. In many instances there is a combination of issues and problems that estate beneficiaries and fiduciaries face before estate settlement can be finalized. A recent case entitled Estate of Veronica Tesler, decided by Kings County Surrogate, Diana A. Johnson on January 11, 2012 and reported in the New York Law Journal on February 6, 2012, provides a typical example of estate administration that faced many problems.

In Tesler, the decedent, Veronica Tesler, had been determined to be incapacitated prior to her death. As such, the Court had appointed Guardians for her person and property. Also, prior to her death, Veronica had signed a Last Will in which she left her estate to her nephew and appointed him executor.

While Veronica’s preparation of a Last Will was sound estate planning, the nephew predeceased Veronica. Apparently, Veronica did not provide for any alternate disposition of her property. The result was that she effectively died intestate (i.e. without a Will), because there was no provision in her Will for an alternate beneficiary. Tesler demonstrates that it is always best to provide for alternate beneficiaries in a Last Will as well as alternate Executors. The Brookyn Probate of Veronica’s Will was thwarted by this apparent oversight.

Since Veronica died intestate her estate beneficiaries needed to be determined by the intestacy statutes of New York. Here, Veronica’s maternal cousins filed a petition with the Court to obtain Letters of Administration. However, since the maternal cousins could not provide information regarding Veronica’s paternal next of kin (“distributees”), the Court appointed the Public Administrator to handle the estate affairs. The Public Administrator is a public official whose function is to administer estates in various circumstances such as where no family member or no family member of close enough kinship in the case of intestacy is available.

After the Public Administrator completed the administration of Veronica’s estate such as collecting assets and paying bills and debts, the Public Administrator filed an accounting with the Surrogate’s Court. It was at this time that the maternal cousins were required to demonstrate at a Kinship Hearing that they were Veronica’s sole distributees and entitled to receive her entire estate.

Kinship cousin cases can be very complex and require proof in the form of documents such as birth records, death records, marriage certificates, obituaries, census reports and also witness testimony to show which persons actually are the decedent’s sole surviving next of kin. I have represented clients in these proceedings. The use of professional geneologists and investigators is also essential in proving kinship.

In Tesler, the decedent’s maternal cousins were finally able to establish to the satisfaction of the Court that they were the decedent’s sole surviving heirs. The case shows how despite preparing a simple Will, very complicated estate administration proceedings may be needed to settle an estate. Advice from an experienced New York Estate attorney is essential both to prepare an estate plan that can avoid complicated litigation and to help family members succeed in protecting their inheritance rights.

February 8, 2012

New York Estates May Be Affected by Marital Agreements

by Jules M. Haas

Under New York Law, spouses enjoy protections regarding rights to share in the other spouse’s assets. While both spouses are alive, divorce laws such as “equitable distribution” provide a framework for the disposition of assets between spouses. However, when one spouse dies, rules provided by the New York Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act come into play. Aspects of other statutory rules also must be considered between spouses, both alive and deceased, such as property concepts of ownership in the form of joint ownership or tenancy by the entirety.

During the course of a marriage, spouses may prepare Last Wills, as well as other papers such as pre-nuptial agreements or separation agreements. These agreements may obligate a spouse to provide certain benefits for the other spouse such as maintenance (i.e., alimony) and a paid up life insurance policy. Generally, these agreements are considered contracts and if a spouse dies without satisfying the obligations under the agreement his estate may be found liable for payments he failed to make during life. Additionally, these pre or post martial agreements can provide for a waiver of rights to share in the other’s estate or to act as executor or administrator of the estate.

During estate settlement the requirements of these agreements must be reviewed and considered. Experienced probate attorneys representing executors and administrators typically review these documents so that the estate fiduciary can fully understand the impact the decedent’s lifetime agreements will have on estate administration.

Two recent Surrogate’s Court cases demonstrate how such agreements can affect the final settlement of an estate. In the Matter of Griffin, decided by Monroe County Justice Edmund A. Calvaruso on September 29, 2011 and reported in the New York Law Journal on October 24, 2011, the decedent had signed a Separation Agreement with his wife prior to death. When the decedent died he and his wife owned a house as tenants by the entirety. The agreement had provided that the house should be sold and the sales proceeds divided between them. Among other issues decided by the Court, it was determined that notwithstanding the agreement, following the decedent’s death since the parties were still married, the surviving spouse was entitled to the full proceeds from the sale of the house. The house was not sold until after death. Since the house was still owned by the decedent and his wife as tenants by its entirety at his death, title to the entire house passed by operation of law to the surviving spouse as surviving tenant by entirety and the wife’s property rights as a tenant by the entirety were not terminated by the separation agreement.

In Matter of Piyavan Chantarasmi [a/k/a Matter of Bruan], decided by Westchester Surrogate Anthony A. Scarpino on January 26, 2012 and reported in the New York Law Journal on February 23, 2012, the decedent had signed a Pre-Nuptial Agreement. The agreement provided among other things that he would leave 70% of his estate to trusts to be set up for his children in his Will. The decedent died Intestate (without a Will), due to an accident and, therefore, did not establish the trusts as required by the pre-nuptial agreement. The Court allowed the Estate Administrators to draft and create the trusts for the children as was required by the agreement.

Griffin and Chantarasmi both show that Estate Executors and Administrators must review all agreements and obligations relating to the decedent so that estate administration is properly handled. I have represented estates where these types of agreements had been entered into by the decedent and have advised the estate fiduciaries regarding the implications of these matters.