New York Probate Lawyer Blog

The Commencement of a New York Guardianship Proceeding Can Present Difficult Decisions

Fri, 18 May 2012 14:31:17 -0500

Article 81 of the New York Mental Hygiene Law (MHL) provides the substantive and procedural statutes regarding New York Guardianships. As previously talked about in many past posts in the New York Probate Lawyer Blog, a Guardian can be appointed to handle a person's property management and personal needs when the person is determined by the Court to be incapacitated. However, the determination of incapacity is not always easy. Certainly, when a person has suffered a severe illness or accident and is completely dependent upon others for assistance with activities of daily living (i.e., the person cannot walk, talk or feed him/herself), the need for a Guardian is clear.

On many occasions though a person may be living alone or have some type of part-time care but is exhibiting the effects and deterioration of daily functioning that puts into question their capacity to adequately handle their property or personal affairs without risk to their well-being.

In these situations difficult questions arise on many levels. The first major hurdle may be the emotional quandary of having to bring a Court proceeding against a parent or other close relative to impose a Guardianship. The alleged incapacitated person often has enough cognitive ability to oppose the appointment and may be offended by the introduction of control over their affairs even though such supervision is needed to prevent future harm that may occur without the appointment.

New York Guardianship Lawyers are frequently asked by family members to help them decide the best course of action to take in these situations. Guardianship attorneys know that there is never a simple or textbook answer to these questions since the individuals and circumstances are unique in every situation. Sometimes family members refuse to get involved. In such instances, Adult Protective Services may be contacted and Guardianship proceedings will be commenced by the New York City Department of Social Services.

Once a New York City Guardianship proceeding is started, the next concern may be to actually show by "clear and convincing evidence" (MHL Section 81.02) that the person is, in fact, incapacitated. This may require an actual hearing or trial during which witnesses can testify as to the alleged incapacitated person's ability to handle activities of daily living and his or her recent actions that reflect capacity. For example, the fact that a person leaves home and gets lost or cannot recall the names of relatives or the location of the banks where his accounts are held all tend to indicate the level of a person's cognitive abilities.

Manhattan Guardianship proceedings, like those in all other New York Counties, involve the story of an alleged incapacitated person and their ability to attend to their present life's activities while confronting the possible effects of disease or injury. It is typically the final decision of the Guardianship Court as to what extent, if any, such person needs assistance and, if so, who should be appointed as Guardian to provide the proper supervision.

Estate Planning for Singles or the Widowed

Tue, 15 May 2012 14:13:03 -0500

How planning for one differs from planning for a couple

In some ways, estate planning for a single person can be more challenging for an estate planner than planning for a couple. When a couple formulates an estate plan, the easiest and most natural thing to do is to entrust one another with all of the responsibilities in the event of one spouse's death. Among these responsibilities are the administration of the estate, execution of advance medical directives, power of attorney for financial decisions, and access to medical records in end-of-life scenarios.

The relative ease in dealing with these issues for couples is that the surviving spouse is most often within the closest emotional and geographic proximity to the deceased and their assets. Spouses are uniquely qualified to speak for one another, because they have likely had more occasions to discuss end-of-life scenarios with one another. Moreover, the surviving spouse is more likely to have been included in the financial decision making throughout the marriage, making the surviving spouse the utmost authority in the financial decision making beyond the marriage.

Those who never married and those who have been widowed do not have the luxury of entrusting emergency or end-of-life responsibilities to their spouse. These responsibilities typically fall to other members of the immediate family, like siblings. Siblings and other family members are often naturally less in-tune with one's financial and medical wishes than a spouse might be. Therefore, a single person who is planning for his/her estate should make sure that any responsibilities entrusted to a relative are clearly spelled out in the appropriate documentation. Medical emergencies and end-of-life scenarios are emotional times in which the appropriate people must often be quick and decisive. Quick and decisive action is most easily achieved by a clear delegation of authority backed by legally sound paperwork. The appropriate people should have copies of this paperwork in a safe yet available place.

On that note, single people should bear in mind that the best people to entrust with these responsibilities are often within relative geographic proximity. It makes little sense for a New Yorker to entrust the authority of advance medical directives to a relative living in Seattle, for example.

Single people have even more estate planning considerations to think about. One such consideration is the unavailability of supplemental sources of income in case of disease, disablement, or incapacitation. Single New Yorkers should consider these possibilities in their estate planning efforts. Those who still work should ensure that they are covered by sufficient disability insurance, either privately or through their work. As single people get older, they should also consider purchasing long term care insurance to supplement any health insurance they may have. Long term care insurance typically covers expenses incurred in things like nursing home or hospice care that could be denied by normal health insurance coverage.

No matter which category you fall under, a New York estate planning attorney is the best resource to consult on these matters. Your estate lawyer understands the difference between planning for a couple and planning for the single or the widowed, and can help you craft the appropriate emergency and end-of-life directives, including to whom they will be entrusted.

Intestate New York Estates Can Cause Problems

Wed, 09 May 2012 17:37:34 -0500

The New York Probate Lawyer Blog has discussed many issues that arise in connection with intestacy. When a person is said to have died intestate it means that his or her estate is to be distributed without the benefit of a Last Will. The relevant local laws of intestacy determine which persons (i.e., next of kin) are to inherit the decedent's estate.

An intestate estate can arise when a person does not execute a Last Will prior to death. It can also occur when a person purportedly signs a Will but the Will is lost or there is a Will Contest litigation and the document is not admitted to probate.

The recent untimely death of Amy Winehouse is a typical example of someone who did not prepare a Last Will. When there is no Will, the intestacy laws of a person's domicile or primary home determine who is to inherit. In Ms. Winehouse's case, the laws of Great Britain provided that her parents were to inherit her estate. Ms. Winehouse was not married and had no children at the time of her death.

Without having a Last Will, a person cannot control who is to inherit estate assets. Although creating joint accounts and naming beneficiaries for retirement funds, life insurance and other assets can help avoid the effect of intestacy laws, any assets held by a decedent in his or her own name alone are subject to the statutes. Unfortunately, the beneficiaries selected by the controlling laws may not be the persons the decedent wanted to receive their estate.

Not only do intestacy laws dictate who is to receive estate assets, the decedent is forced to forego any possibility of estate planning for tax savings. Ms. Winehouse's estate value was in excess of $6 million and may have benefited from estate planning. Without pre-planning by a Last Will or Trust documents valuable credits for estate tax protection may be lost that can benefit younger generations. Additionally, a person who does not have a Last Will cannot select Executors, Trustees and Guardians. Once again, the local laws governing intestacy determine the persons who can hold estate positions such as an Estate Administrator.

Preparing a Last Will and other estate planning papers such as a Living Will and Health Care Proxy are important. Statutes controlling intestate estates should be avoided along with their unintended results.

Choosing a Trustee For Your New York City Trust

Mon, 07 May 2012 17:07:01 -0500

Those seeking to set up a trust in New York have many more options than their nationwide peers when it comes to choosing a trustee. New York offers a unique and varied concentration of financial service institutions that is unlike anywhere else in the world.

However, your trustee need not be a powerful financial services company. Trustees can range from a close family member, friend, a multinational bank, New York City estate planning lawyer or anything in between. Each type of trustee has potential advantages and disadvantages. The following are considerations to keep in mind when selecting a trustee.

First and foremost, a trustee must be able to competently handle the duties of the trusteeship. This is not to say that a corporate trustee is automatically more competent, because the corporate trustee typically lacks the personal knowledge about the person who set up the trust. The private trustee, having been a close friend or a member of the family, is often more informed about the trust owner's personal preferences.

The main advantage of a corporate trustee is the likelihood that the corporate trustee has the resources to specialize in many of the fiduciary responsibilities incumbent of trustees. Corporate trustees typically have particular knowledge in areas such as investment, taxes, record keeping, and regulatory compliance, which make their service appealing to many who are establishing a trust. Corporate trustees are not subject to family biases or prejudices and have little incentive to engage in practices that would favor one trust beneficiary over another.

Some of the main drawbacks to corporate trusteeship are the impersonal nature of the relationship and the potential inflexibility of the corporate trustee in distributing assets to the trust beneficiaries. Corporate trustees may interpret the provisions of the trust more strictly, potentially denying the distribution of assets to beneficiaries in cases of emergency. By contrast, private trustees typically have more reliable and personal contact with living trust owners, and are able to draw on this personal contact in their administration of the trust. If the trust owner happens to be deceased, the private trustee is more capable of anticipating the attitudes that should govern the administration of the trust, drawing on their previous personal interactions with the deceased. Private trustees are, therefore, more flexible as the needs of the beneficiaries arise.

Some of those who establish trusts elect to appoint a group of trustees and to delegate authority amongst them according to their particular strengths. In such an arrangement, the corporate co-trustee may be entrusted with some of the more technical aspects of the administration of the trust, while the private trustee may handle some of the more ambiguous decision-making duties. An advantage of a co-trustee arrangement is the inability of any of the trustees to act unilaterally, ensuring that the possibility of theft, fraud, or mistake is dramatically reduced.

A New York trust and estate attorney can help guide your decision in this important endeavor. The considerations in the appointment of a trustee can often be much more complex than listed here. The right legal professional can help you navigate this difficult decision.

New York Guardianship Proceedings Protect the Assets of the Incapacitated Person

Thu, 03 May 2012 17:01:49 -0500

A New York Guardianship Lawyer can advise a client with regard to the Guardian's duties to protect the assets of the incapacitated person. Mental Hygiene Law (MHL) Section 81.21 is entitled "Powers of guardian; property management" and provides the various property management powers that are given to the Guardian. These powers are to be used to collect, preserve and apply the Guardianship property for the benefit of the person who is incapacitated.

The Mental Hygiene Law provides that the Guardian must file an Annual Report with the Court (MHL Section 81.31). The filing of the Report provides a means by which the Court can review whether the Guardian is acting in a proper manner on a year to year basis. These Annual Reports are typically reviewed by a Court appointed Court Examiner who provides a report to the Judge who is supervising the Guardianship case. The Judge then reviews the report and if the account is satisfactory, signs an Order approving the Report.

The Guardianship accounting process is somewhat different than the Accounting Proceedings that occur in the Surrogate's Court regarding a decedent's estate. It is very common that when settling an estate the final Estate Accounting is approved informally by the interested parties. In other words, the parties simply review the Executor's Accounting or the Administrator's Accounting and sign a Release form. There are no formal proceedings or accounting that is filed with the Surrogate's Court. The process of probating a New York Will and settling a New York Estate does not require that an annual or a final account be approved by the Court. However, formal accounting proceedings requiring the Surrogate's Court approval are sometimes required. In a Guardianship matter such as a Manhattan Guardianship, Nassau Guardianship, Queens Guardianship or other Court proceedings, annual and final Accountings must be filed and approved by the Court.

Probate and Guardianship Attorneys in New York can assist their clients when preparing the accounts that are needed to report the actions taken by them as fiduciaries. The best advise is to maintain complete records and copies of all papers showing all the financial transactions that were entered into. Also, hiring a fiduciary accountant can simplify the preparation of the accounting schedules that are required by the Court for reporting all information. Acting as a fiduciary such as a Guardian, Executor, Administrator or Trustee involves accepting the responsibility to protect and manage someone else's assets. Proper guidance from a good Estate lawyer or Guardianship lawyer is essential to performing fiduciary duties properly and having the Court approve of the actions taken. Legal representation and diligence regarding property management is especially important where family members are fighting amongst themselves concerning the affairs of the person who is incapacitated. As recently reported in the Beverly Hills Courier on May 2, 2012, there is an ongoing dispute between Zsa Zsa Gabor's husband and daughter concerning the management of her affairs. Although the article reports that the parties are attempting to settle the matter, each side will need to have a complete record of financial transactions concerning Ms. Gabor in order to fully access the situation and to present their case to the Court, if necessary.

New York Trust and Estate Lawyers Can Explain Living Trust

Tue, 01 May 2012 16:40:26 -0500

As a way for an individual to avoid burdening his or her surviving family members with the task of probating a Will and probate fees after death, New York law allows the creation of the inter vivos trust, also called the living trust. A living trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. This estate planning option essentially allows surviving family members to avoid probate court to disperse the decedent's assets to the appropriate heirs. New York has not adopted the Uniform Probate Code, which simplifies the probate process. Therefore, creating a living trust is an appealing estate planning method in order to avoid the complexities of the probate process in New York.

Perhaps this was the objective of 98-year-old Mary Kantorowski when she signed a deed transferring her home into a trust. As reported by The Connecticut Post, Probate Court records reveal that in 1996, Mary and her husband, John Kantorowski, agreed to transfer the house to a trust administered by their son, Peter Kantorowski, with the condition that Mary would live there until her death, and that upon her death the house would go to Peter and his younger brother, Jack. Despite the provisions of the trust, Peter quitclaimed the house to another trust under his control, ultimately giving him ownership of the house. As a result of her failure to fully understand the contents of the deed that had transferred her home into a trust, Mary was served with papers to evict her from her home by her own son in 2011.

In relation to the duties of a trustee, New York has adopted the Prudent Investor Act, provided in Estates, Powers and Trusts Law section 11-2.3. Pursuant to this act, the trustee is obligated to "exercise reasonable care, skill, and caution" in making investment decisions on behalf of the trust. NY EPTL § 11-2.3 (b)(2). The "exercise of reasonable care, skill, and caution" will be defined in light of the circumstances at the time the decision was made or action was taken by the trustee. NY EPTL § 11-2.3 (b)(1).

In applying New York's Prudent Investor Act to this particular case, the issue is whether Peter Kantorowoski, the trustee, did in fact act in the best interest of his mother when he put the home up for sale. In his defense, Peter argues that attempting to evict his mother and putting the home up for sale was in the best interest of his mother due to her old age. He claimed it would be best for her to live in a nursing home. The sequence of events demonstrates that there was nothing to prevent Peter from transferring the home out of the trust. Of course, Ms. Kantorowski disagreed and argued that the move was simply an attempt by her son to take advantage of the situation. Unfortunately, many local seniors continue to be taken advantage of in this way on a seemingly daily basis.

In order to invoke the benefits of a living trust as a method of estate planning and to avoid unfortunate situations such as the one depicted in this particular case, it is imperative for the individual creating the living trust to understand all the provisions of the trust. Therefore, due to the intricacies of New York estate planning, it is in an individual's best interest to seek the advice of an experienced estate planning attorney in order to ensure that his or her rights are being optimally protected.

New York Estate Planning Provides Protection Both Before and After Death

Wed, 25 Apr 2012 16:05:44 -0500

A New York Estate Planning Attorney can advise a client regarding the preparation of documents such as a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust. By preparing these documents an individual can provide protection to him or herself and their family during life and after death and avoid protracted Guardianship proceedings and Estate Litigation.

The New York Probate Lawyer Blog has discussed many issues regarding Article 81 Guardianship Proceedings. New York Guardianship proceedings are usually necessary when a person becomes incapacitated and does not have a Living Will, Health Care Proxy, Power of Attorney or Living Trust. These documents are advance directives that allow designated agents to make health care, end of life and property management decisions without the delay and complications of seeking court appointments. Unfortunately, in many instances such directives are not prepared and the assistance of a New York Guardianship Attorney will be required to prepare the Court petition and process the Guardianship proceeding. Guardianship proceedings are filed in the County where the incapacitated person resides or is physically present (MHL §81.05) I have represented many clients in Queens Guardianships, Manhattan Guardianships, Brooklyn Guardianships and proceedings in other counties as well.

The creation and signing of other types of documents are also important in both the pre and post death setting. For example, individuals who own businesses should prepare documents such as Shareholder and Partnership Agreements that define the rights and interests of the respective owners and provide specific instructions regarding the transfer of an owner's interest upon death or disability. The failure to seek guidance from a New York Estate Planning Attorney with regard to succession planning can result in disputes and litigation after the death of one or more of the business owners. Such was the case with regard to the founders of the company that created the Archie comics book character. As reported in Estate of Denial on April 26, 2012 the disputes that arise between successors can transform a once peaceful company setting into disarray.

Certainly, having a Last Will which provides for a clear disposition of assets and takes into account those assets that pass by operation of law such as joint accounts, is a fundamental necessity for post death security.

A recent article by Rob Clarfield in Forbes on April 25, 2012 entitled, "7 Major Errors in Estate Planning" provides a short-hand guide to some current considerations. The 7 "errors" discussed in the article are:

1. Not having a plan
2. Online or DIY rather than professionals
3. Failure to Review Beneficiary Designations and Titling of Assets
4. Failure to Consider the Estate and Gift Tax Consequences of Life Insurance
5. Maximizing annual gifts
6. Failure to Take Advantage of the Estate Tax Exemption in 2012
7. Leaving assets outright to Adult Children

As is true in every estate plan, a comprehensive analysis of a person's desires and intentions and family and assets is needed to determine the proper course to follow for their personal plan. Putting the proper documents into place not only provides lifetime stability and protection, but also prevents Estate Litigation in Probate Courts that be destructive to family harmony and costly to the estate beneficiaries.

New York Estate Cannot Be Paid To a Beneficiary Who Murdered the Decedent

Wed, 18 Apr 2012 16:55:53 -0500

Estate Administration in New York involves the determination of the persons who are the estate beneficiaries. The New York Probate Lawyer Blog has discussed in many posts that when a person dies without a Last Will his or her distributees inherit the estate. Where a Last Will has been prepared, the beneficiaries named in the Will are entitled to receive their designated shares of the estate once the Will is admitted to Probate.

An interesting question arises, however, when an estate beneficiary murders the decedent and thereby benefits from the result of a wrongful act. New York Trusts and Estates Lawyers are aware of the decisions by the New York Courts which provide that a person who murders another cannot profit from such wrongdoing and is disqualified from receiving his or her share of the decedent's estate. Recently, the Suffolk County Surrogate's Court was asked to decide a case that involved the above principal of disqualification with an interesting twist. In Estate of Dianne Edwards, decided by Surrogate John M. Czygier on March 28, 2012, and reported in the New York Law Journal on April 13, 2012, the decedent, Dianne Edwards ("Dianne") was murdered by her son-in-law, Brandon. Brandon's wife, Deanna, was the surviving daughter of Dianne, and the sole beneficiary under Dianne's Last Will. Since Deanna was not involved in any wrongdoing, she was not disqualified from receiving her interest under Dianne's Will. However, before the estate funds were distributed, Deanna died intestate and her sole heir and distributee was her husband, Brandon. Therefore, the issue before the Court was whether Brandon forfeited his right to inherit the funds from Dianne's estate that would pass to him through his deceased wife's estate. New York estate attorneys representing Dianne's sister, Donna, claimed that Brandon was disqualified and that Dianne's estate should be paid to Donna as Dianne's sole surviving heir. Essentially, the Court was asked to pass over Deanna's estate interest since such interest was subject to disqualification due to Brandon's wrongful conduct.

The Court decided that Brandon was disqualified to receive the inheritance and that he should not profit from his wrongdoing even if the payment would have been indirectly made through his wife's estate. It is important to recognize from the Court's decision that New York Estate Administration often involves a complex analysis and determination regarding the identity of estate beneficiaries and their respective interests. Previous blog posts have discussed aspects of New York Estate and Trust laws that require proof of kinship or that may result in disqualification due to conduct such as the abandonment of the decedent by a surviving spouse (EPTL § 5-1.2).

Probate Lawyers throughout the state in localities such as Manhattan, Queens and Brooklyn assist their clients who are Executors, Administrators and beneficiaries when confronted by these issues. Estate litigation is often required to resolve these disputes as was the case in Dianne Edwards' estate. Since the Surrogate's Courts are the forum where estate proceedings occur, these Courts are very familiar with these issues and attempt to resolve them through settlement or trials.

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

Wed, 11 Apr 2012 15:04:13 -0500

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.

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

Wed, 04 Apr 2012 14:21:13 -0500

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.

(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.

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

Wed, 28 Mar 2012 16:19:38 -0500

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.

Estate Accounting In New York Finalizes the Settlement Process

Wed, 21 Mar 2012 16:41:38 -0500

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.

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

Wed, 14 Mar 2012 16:22:57 -0500

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.

New York Last Wills Should Express The Testator's Intent

Wed, 07 Mar 2012 17:20:02 -0500

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.

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

Wed, 29 Feb 2012 17:02:26 -0500

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.