New York Probate Lawyer Blog

New York Non-Marital Children Can Inherit From Their Father

Wed, 01 Feb 2012 16:38:37 -0500

A New York estate proceeding in the Surrogate's Court requires the participation of all interested parties. First and foremost, a decedent's distributees (next of kin) must be identified so that proper notice, usually in the form of a Citation or Notice, can be sent to the parties at their current address. A due diligence search must be made to determine both the identity and address of all distributees. Both Probate and Intestate Administration proceedings require that these parties be included in the case. Failure to properly include necessary parties in Estate proceedings, particularly where estate litigation is involved, can create a defect whereby the Court's final determination may be subject to being found void.

The New York Probate Lawyer Blog has previously discussed issues involved where a decedent-father had children but was not married to the child's mother at the time the child was born. These non-marital children - distributees - usually face an uphill battle to show that they are, in fact, children of the decedent, and that they are entitled to a share of the decedent's estate or other rights they are given as distributees in the Court process.

New York Estates, Powers and Trusts Law Section 4-1.2 entitled "Inheritance by non-marital children", sets forth the grounds and manner by which a non-marital child can demonstrate his or her relationship. The statute provides that a non-marital child "is the legitimate child of his mother." However, with respect to his father, unless there is some Court Order or official determination of paternity, the most common avenue to prove kinship is to follow the statutory direction and provide "clear and convincing evidence" that "the father openly and notoriously acknowledged the child as his own." The statute also provides for proof by "genetic marker testing."

I have represented individuals who sought to inherit an estate where it was necessary to present evidence to the Court that satisfied EPTL 4-1.2. A hearing is commonly held by the Surrogate or a Court referee and documents and witnesses are presented to satisfy the legal requirements of open and notorious acknowledgement.

In a recent case decided by Westchester Surrogate Anthony A Scarpino on January 19, 2012 and reported in the New York Law Journal on January 27, 2012 entitled, Matter of the Estate of Michael Konstantin, issues regarding proper notice of Surrogate's Court proceedings and proof of kinship of a non-marital child converged. In Konstantine, a proceeding was commenced by a non-marital child to vacate the probate of the decedent's Last Will and the distribution of millions of dollars of wrongful death proceeds on the ground that the non-marital child was not included as a party to the prior proceedings and was entitled to receive a share of the proceeds. Based upon the evidence presented to the Court, the Surrogate found that the child presented some evidence that "the decedent openly and notoriously acknowledged the non-marital child as his own" and also showed that genetic marker testing was a proper method of discovery. Therefore, the Court directed that the decedent's other children submit to genetic marker testing which has a high probability of showing whether the non-marital child had a common father.

Surrogate's Court cases require the assistance of experienced estate attorneys who are familiar with the rules and procedures of estate settlement to protect the interest of the parties interested in a decedent's estate.

New York Guardianship May Involve Many Family Members with Contentious Relationships

Wed, 25 Jan 2012 17:26:04 -0500

The appointment of a Guardian under Article 81 of the Mental Hygiene Law ("MHL") is subject to the procedures set forth in the statute. The proceeding is commenced by filing an Order to Show Cause and Verified Petition with the New York Supreme Court. The petitioner contains a significant amount of information concerning the alleged incapacitated person ("AIP") including a designation of the AIP's ability to manage activities of daily living (MHL Section 81.08).

Manhattan Guardianships, as well as Guardianship proceedings in other New York counties, require that notice of the proceeding be given to the AIP's spouse, parents, adult children, adult siblings and the persons with whom the AIP resides (MHL Section 81.07).

Information regarding the AIP's family may not always be readily available. This is particularly so where the Guardianship proceeding is commenced by a non-related party such as a New York Department through Adult Protective Services or a medical facility or a nursing home.

It is not uncommon for a group of relatives to be at odds concerning the appointment of a Guardian. Different individuals may have competing views as to whether a Guardian should be appointed and, if so, who the most appropriate person is to act as Guardian of the Person or Property. Sometimes, one of the parties to the Court action has already been exercising control over the AIP's property and personal affairs, possibly through the use of a Durable Power of Attorney or Health Care Proxy. Such person may resent interference from other family members and try to restrict their access to the AIP or involvement with decision making. In these situations, a full hearing of the competing claims and assertions can be held by the Court in order to ascertain what is in the best interest of the AIP.

A Bronx Guardianship case in which competing family views were presented to the Court was recently decided by the Honorable Alexander W. Hunter, entitled Matter of G.V.S., decided on December 16, 2011 and reported in the New York Law Journal on January 23, 2012.

In G.V.S., the AIP was a 73 year old person who became incapacitated due to a stroke. A Guardianship Petition was filed by the person's daughter. Testimony at the Court hearing was given by the daughter, two sons, the person's long-time companion, the person's son-in-law and brother. Family members had complained that the petitioner-daughter had tried to control the AIP's affairs and had excluded them from contact with the AIP.

Although the Court appointed the daughter as Guardian of the AIP's person and property, the Court directed that she was not allowed to prevent the other family members from having access to the AIP and that she must keep them informed concerning the AIP's health and medical condition.
G.V.S. demonstrates that a Guardianship proceeding not only involves matters regarding the AIP's ability to care for his or her affairs, but also issues concerning the friends and relatives who might be involved in the person's physical care and property management. Guardianship attorneys and their clients need to review and evaluate all of these aspects when commencing a Guardianship case so that the Court can be presented with all of the relevant information to make a determination that will be for the long-term benefit of the AIP.

New York Wills Need to Clearly State a Testator's Estate Plan

Thu, 19 Jan 2012 16:16:56 -0500

Estate Planning Attorneys in Nassau and Westchester, as in all other New York Counties, are well aware that the documents they prepare for clients must have clearly worded provisions.

A Last Will is a testamentary statement as to where and how a decedent's assets are to be disposed of. In its most fundamental form a Last Will can set forth a number of dispositions. There can be a statement that certain individuals or entities are to receive a specified property or a specified amount of money.

Additionally, the residue or balance of the estate can be disposed of in any number of ways such as by percentages to a number of recipients. Trusts that are created in the Will are called testamentary trusts. These trusts only come into being after the Will is admitted to probate and the trust is funded. InterVivos Trusts are created outside of a Will and can begin to function as soon as they are prepared.

A New York Will also contains provisions for the appointment of Executors, as well as Trustees of any trust created by the Will. Also, Guardians for minor children can be nominated in a Last Will. Beneficiaries and alternate beneficiaries that are named in the Will should be accurately identified by their relation to the decedent and their names should be correctly spelled.

The utmost care is required so that the Will provisions are clearly worded. Such clarity is essential so that the decedent's intent can be carried out by his or her Executor and Trustee. Where provisions in a Will and/or Trust are confusing or ambiguous, Executors, Trustees, beneficiaries and the Court are left to try and decipher what the decedent really meant and desired regarding the disposition of property. If the interested parties cannot agree as to the document's meaning then a Court must construe the intent of the testator. In a proceeding for the Construction of a Will the Court does not rewrite Will provisions. Instead, the Court attempts to carry out the intentions of the decedent. Construction proceedings can involve complex issues for probate lawyers and their clients who are Executors and estate beneficiaries.

A recent example of confusing language requiring Court clarification occurred in the case of Matter of Winifred Gooding Brice, decided by Surrogate Edward W. McCarthy III, (Surrogate's Court, Nassau County) on December 13, 2011 and reported in the New York Law Journal on January 10, 2012.

In Gooding, the decedent had executed a Last Will which was followed by the decedent's signing six Codicils. A Codicil is essentially an amendment to the original Will. A question of construction arose because there was a contradiction between two codicils concerning the time a certain trust was to terminate.

Gooding shows that in order to avoid inconsistencies between multiple Codicils and a Last Will, it would be preferable to rewrite and revise the entire Last Will and incorporate all of the modifications into a single document that would not be confusing. By re-doing the entire Will, estate planning and estate administration can be streamlined.

New York Guardianship Favors The Appointment of Family Members

Wed, 11 Jan 2012 17:15:09 -0500

Manhattan Guardianship of an incapacitated person, as well as proceedings throughout New York, requires a Court hearing and a determination that clear and convincing evidence has been presented that a Guardian is necessary. Article 81 of the New York Mental Hygiene Law ("MHL"), sets forth the substantive and procedural guidelines for the appointment of a property management guardian and a personal needs guardian.

Among the many considerations and determinations that the Court must make in these proceedings is the selection of the proper person or entity to act as Guardian. MHL Section 81.19, entitled "Eligibility as guardian," provides the Court with some direction in selecting an appropriate Guardian.

As a general matter, appointment of family members of the incapacitated person is usually preferred. In many cases, the Petitioner in the proceeding is a close relative such as a child or a spouse. Typically there is a long history of family closeness and caring that the Court will recognize in making its selection.

However, despite this preferential treatment, family members can face obstacles to appointment. In many cases the Court may require that the Guardian file a Bond with the Court. A Bond is similar to an insurance policy. It is obtained from a surety company that insures that if the Guardian misappropriates any of the incapacitated person's funds, the surety company will cover the loss. Unfortunately, sometimes a family member may not qualify to obtain a bond due to a poor credit history or criminal background.

Also, a Court may refuse to appoint a family member as a Guardian where there is a conflict of interest between the family member's interests and those of the incapacitated person or other family members.

Another instance where a family member may not be appointed is where some family conflict or hard feelings exist between competing family members or between the prospective appointee and the incapacitated person. In a recent case entitled Matter of Ella C., decided by the Honorable Betsy Barros on December 14, 2011 (Supreme Court, Kings County) and reported in the New York Law Journal on January 12, 2012, the Court was presented with a petition filed by three of the four children of the alleged incapacitated person. Following a hearing the Court found that the appointment of a Guardian was necessary but did not appoint any of the children, each for various reasons, including improper handling of their mother's financial affairs, animosity between them and their mother, and "mixed loyalties."

Queens Guardianship attorneys and lawyers representing petitioners and families in Guardianship cases throughout New York, must be aware of the requirements to have a Guardian appointed and also the qualifications that are needed for someone to be selected by the Court. As discussed above, just being a family member may not be enough in all situations to be named by the Court as a property management or personal needs Guardian.

New York Guardianship and Estate Settlement Often Cross-Paths

Fri, 06 Jan 2012 17:23:01 -0500

New York Guardianship proceedings for incapacitated persons are governed by Article 81 of the Mental Hygiene Law (MHL). The New York Probate Lawyer Blog has discussed in numerous posts the powers and duties of a Court appointed Guardian.

In many instances, a petition for Guardianship is filed with the Court because the Alleged Incapacitated Person ("AIP") appears to be the victim of physical or economic abuse. The Guardianship proceeding will require the appointment of a Court Evaluator and/or Attorney for the AIP. These appointees and the Court itself will review whether any wrongdoing is being perpetrated. Sometimes, a government agency called the New York State Mental Hygiene Legal Service is appointed to protect the AIP's interests. MHL Section 81.29 entitled "Effect of the appointment on the incapacitated person" provides the Court broad powers to remedy situations where the AIP has been taken advantage of. For example, the Court can void a contract or a power of attorney entered into by the AIP if the Court finds that the AIP lacked capacity when such papers were signed.

Even though the statute gives the Guardianship Court broad powers to remedy wrongdoing, MHL Section 81.29(d) specifically provides that the Court cannot "invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person." Thus, if the AIP signs a Last Will at the time he or she is found to be incapacitated while still alive, any objection or Will Contest to the validity of the Will must wait until the AIP is deceased and the Will is offered for probate.

In this regard, it is interesting to note that a finding of incapacity in a Guardianship proceeding does not mean that a person lacked the testamentary capacity to execute a Last Will. MHL Section 81.29(b) specifically provides that "subject to subdivision (a), the appointment of a guardian shall not be conclusive evidence that the person lacks capacity for any other purpose, including the capacity to dispose of property by will".

Since a Last Will cannot be challenged until a person dies, many issues involving the disposition of the AIP's estate are fought over only after the AIP dies. Estate settlement and estate administration becomes the new battle ground for problems that could not be settled in the Guardianship.

The Courts clearly recognize that while the overlap of controversies may exist, the paradox of a finding of incapacity for Guardianship cannot forestall an incapacitated person's ability to sign his or her Will.

This circumstance was clearly shown in a recent case entitled Matter of Biaggi, decided by Justice Alexander W. Hunter, Supreme Court, Bronx County, on November 10, 2011 and reported in the New York Law Journal on November 28, 2011. In Biaggi, objections were filed to the action of the Guardian for retaining an attorney to assist the incapacitated person with drafting and executing a new Last Will. The Court found that the Guardian acted appropriately and noted that "allegations of testamentary capacity and undue influence are matters that should be more appropriately be brought up, if necessary, post-mortem and not at this time before this Court."

New York Wills Probated After Validity is Established

Wed, 28 Dec 2011 12:39:21 -0500

Probate of Wills in New York requires the compliance with many provisions that are part of the New York Estates, Powers and Trusts Law ("EPTL") and the Surrogate's Court Procedure Act ("SCPA").

First and foremost, EPTL Section 3-2.1 entitled "Execution and attestation of wills; formal requirements "sets forth the statutory mandates that must be followed for a Will to be validly signed. The statute sets out a number of requirements such as: (i) the Will must be signed at the end by the testator (3-2.1(a)(1); (ii) there needs to be "at least two attesting witnesses" (3-2.1(a)(c)(4) ); and (iii) the signature of the testator must be made in the presence of or acknowledged to the witnesses (3-2.1(a)(c)(2).

The formal requirements of the statute are quite extensive and variations or questions that may occur regarding compliance with these formalities often result in controversy and litigation. For example, what happens if all the steps are taken to prepare and execute a Last Will but the original of the Will cannot be located after the testator's death. SCPA 1407 entitled "Proof of lost or destroyed will", provides the process by which a Will can be admitted to probate under such circumstances.

In order for the probate process to be completed, the Court requires that the Attesting Witnesses provide testimony confirming that the signing of the Last Will complied with the formalities of law. This testimony can be live or, as is most often done, by sworn affidavit. However, what happens when one or more of the witnesses are deceased or cannot be located when the Will is being probated. SCPA 1406 entitled "Proof of will by affidavit of attesting witness out of court", allows the witnesses affidavit to be used to establish the validity of the Will. This affidavit is usually made when the Will is signed and is known as a "self-proving" affidavit.

It is a common misconception that preparing and signing a Last Will is a relatively simple matter. As appears from the brief discussion herein and other posts in the New York Probate Lawyer Blog, failure to comply with the statutory rules for Wills can result in battles in the Manhattan Surrogate's Court, or other Surrogate's Courts throughout the State. The decedent's intentions regarding an estate plan can be disrupted or destroyed. The rules and procedures, although complex and sometimes appearing to be archaic, are meant to provide certainty as to a decedent's last wishes and prevent fraud and deception.

A recent case in the New York State Supreme Court, Onondoga County, Castor v. Pulaski, decided by the Honorable Anthony J. Paris on December 14, 2011, shows why the many safeguards to the probate process are necessary. Castor is an action to recover damages for fraud engaged in by individuals who attempted to defraud the Surrogate's Court by filing and attesting to the validity of a fake Will. The plaintiff, who was the decedent's son, actually withdrew his objections to the Will in view of the witness affidavits which were, unbeknownst to him at the time, false.

The Court granted compensatory and punative damages against the defendants and noted in its decision: "Based on Defendants' track record, their testimony is totally incredible except for those portions wherein they admit that they willingly and voluntarily falsely acknowledged Mr. Castor's execution of his Last Will and Testament when, in fact, they did not so witness his signature and he did not request them to sign as witnesses. They also admit to their subsequent execution of the Attesting Witness Affidavits on November 23, 2005, knowing that the information contained in said Affidavits was not true."

The preparation, execution and probate of Wills, as well as proper estate administration, is complicated and involves serious consequences. Due diligence by all individuals and family members, as well as professional guidance from estate and probate attorneys, is essential.

New York Distributees May Be Adopted Persons and Interested in a Decedent's Estate

Wed, 21 Dec 2011 14:35:58 -0500

The New York Probate of a Last Will and an administration proceeding for an intestate (no Will) estate each requires compliance with provisions in the New York Estates Powers and Trusts Law (EPTL) and the Surrogate's Court Procedure Act (SCPA).

Among the most fundamental provisions of these statutes is the requirement that parties who have an interest in the proceedings receive proper notice so that they can appear in Court and protect their rights. In this regard, it is not always easy to determine or to locate all the parties whose interests must be disclosed to Court so that proper notice is provided to them.

For example, in both probate and intestate administration proceedings, all of the decedent's distributees must be determined and located so that notice, usually in the form of a Citation, can be sent to them. A Citation is a paper issued by the Surrogate's Court in New York, whether in Nassau County or Brooklyn or otherwise, in which the Court designates a date for the case to appear on the Court calendar and advises the party receiving the Citation to appear on such date in connection with the particular relief that is to be presented (i.e., probate of the Will).

The New York Probate Lawyer Blog has previously discussed some of the many issues that arise in determining interested parties such as questions regarding Kinship and problems faced by persons whose father was not married to their mother at the time of birth.

In a recent case entitled Matter of Cutler, which was decided on October 31, 2011 and reported in the New York Law Journal on November 14, 2011, Surrogate Edward W. McCarthy III (Nassau County) was presented with an issue concerning a biological child of the decedent. It appears that the child had been adopted by a stepfather after the decedent and the child's mother were divorced. In connection with the probate of the decedent-father's Last Will, the proposed Executor asked the Court to unseal the child's adoption records so that the child could be located and given notice of the probate proceeding. As explained by the Court, notwithstanding the adoption of the child by the stepfather, New York Domestic Relations Law Section 117(1) provided that the adoption by the stepfather did not eliminate the child's interest as a distributee of the child's deceased parent. Therefore, the child remained a distributee of her father pursuant to EPTL 4-1.1 and was entitled to notice in the probate proceeding.

The Court allowed the unsealing of the records but appointed a Guardian ad Litem to supervise the process to protect the privacy of the adoption process.

As can be seen from Cutler the assistance of a Nassau Probate Lawyer was needed to advise the nominated executor with regard to probating the decedent's Last Will. I have represented many individuals in probate and intestate administration proceedings regarding the identification and location of all parties who must receive notice and providing the Court with the information necessary to complete these cases. Estate settlement and administration often necessitates a full review of a decedent's family history which requires extensive research. While thoughtful estate planning through the use of a Last Will and Living Trust may avoid some of these post-death problems, it is more often the case that such planning has not been done and estate administration is delayed and complicated while a search for interested parties is performed.

New York Estate Administration Must Always Consider Tax Issues

Wed, 14 Dec 2011 15:52:42 -0500

Estate settlement in New York, including Westchester and Suffolk counties, requires a consideration of many issues. A post in the New York Probate Lawyer Blog on December 6, 2011 talked about a number of estate tax issues that should be considered, including the current $5 million federal tax exemption and "portability" of the unused exemption between spouses.

Executors and Administrators have the fiduciary responsibility of calculating and preparing both Federal and New York State estate taxes, as well as fiduciary estate income taxes. Once an estate comes into existence it is like an ongoing business. Assets must be determined and collected and liabilities and debts need to be paid or resolved. Essentially, the fair market value of the assets owned by a decedent at death will form the basis for determining the estate tax obligation. The income and expenses generated by the estate during the course of Estate Administration are factors to be considered in determining the estate's annual income tax liability.

Estate taxes are typically due to be paid nine (9) months after the decedent's date of death. Fiduciary income tax returns are usually due in April. Extensions for the filing of estate tax and income tax returns are routinely obtained but estimated payments on account of the taxes due must be timely made or interest and possibly penalties can be imposed.

The problem faced by many fiduciaries is obtaining enough information about assets, income, expenses and liabilities in a relatively short period of time so that accurate returns can be prepared and appropriate estimated payments can be made. This process can be complicated where the decedent's assets and income are not easily discovered or are complicated by issues of valuation or litigation regarding ownership. Nassau estate attorneys, like estate attorneys throughout New York, work closely with executors, administrators and trustees to obtain necessary information and plan for the filing and payment of these taxes.

An example of such problems was recently reported with regard to the estate of Brooke Astor. Many articles have been written concerning the estate of socialite Brooke Astor who died on August 13, 2007 and whose son was convicted of stealing her assets. In an article written by William P. Barrett which appeared in Forbes on December 7, 2011, it was reported that the IRS is seeking upwards of $62 million in taxes from the estate, which includes millions of dollars in assessed penalties. The tax disputes seem to concern charitable deductions that the IRS is refusing to recognize along with the failure of the decedent to file and pay certain gift taxes during her lifetime.

It is not uncommon for actions and failures to act by a decedent during life to have a dramatic effect upon estate settlement and, ultimately, estate beneficiaries. Suppose a decedent due to illness or neglect failed to file or pay income or gift taxes during the years prior to death. The estate fiduciaries have a fiduciary obligation to prepare these old and overdue tax returns and pay the tax liability along with any interest and penalty charges. Such payments may have a large impact upon the amount of monies that pass under a Last Will or by intestacy to the decedent's beneficiaries. The advice and counsel of estate attorneys is essential when dealing with these matters.

Estate Tax in New York Remains Uncertain

Tue, 06 Dec 2011 17:23:33 -0500

The Estate Tax continues to generate many articles and much analysis. As previously reported in the New York Probate Lawyer Blog, the changes in the Federal Estate Tax that occurred in December 2010 resulted in increasing the Federal estate tax exemption to $5 million dollars for 2010, 2011 and 2012. The Federal gift tax exemption for 2010 was $1 million but will increase to $5 million for 2011 and 2012. Also, during these years, the 100% marital deduction will remain and the new legislation introduces the new concept of "portability" which allows a decedent to transfer his or her unused federal estate tax exemption to a surviving spouse.

While these new tax provisions may protect more estates from potential federal estate taxes, tremendous uncertainty still exists. The new estate tax provisions expire at the end of 2012 after which the exemption shrinks to $1 million. Adding to the complexity is the New York State estate tax which currently has an exemption of only $1 million. Thus, if a decedent's estate transferred more than $1 million to a non-spouse, the estate may be subject to New York estate tax. For example, if a decedent's estate was $2,000,000 and was inherited by children, the $5,000,000 federal exemption would result in no federal estate tax. However, a $2,000,000 estate would result in a $99,600.00 New York estate tax.

Consulting with a New York estate planning attorney is important both to plan an estate for the future and to help with estate settlement and administration following a death. One important aspect of post-death planning can involve the use of the new "portability" provision. A key aspect of preserving the unused portion of a decedent's federal exemption is to timely file a Federal estate tax return (Form 706). In a recent article in Forbes by Robertson Williams, dated November 30, 2011,The Coming Flood of Estate Tax Returns, the author notes that many tax returns may be filed for the sole purpose of preserving the portable exemption from one spouse to the other.

Estate Executors and Administrators have the fiduciary responsibility of collecting estate assets, paying debts and expenses, and preparing and filing estate tax returns. In view of the complexity of the tax laws, the job facing the fiduciary is not easy. Consultation with probate and estate settlement lawyers and other tax advisors is essential to protect estate assets and take advantage of all deductions and exemptions.

New York Inheritance Can Depend on Family Status Such As A Valid Marriage

Tue, 29 Nov 2011 17:15:07 -0500

The New York Probate Lawyer Blog has reviewed the many instances where family status or kinship can affect an inheritance. In a blog post dated November 22, 2011, there was a discussion regarding the determination of kinship in order to establish a person's right to receive a share of a decedent's estate.

Most cases in New York Surrogate's Courts, including Manhattan Probate proceedings or Westchester intestate Administration proceedings, require that a decedent's heirs be specified so that their rights are protected and the estate is distributed correctly.

It is not uncommon to find disputes among heirs and other estate beneficiaries concerning the validity of a claim as to heirship. Issues involving adoption, paternity, artificial insemination and other questions as to family relations can become fierce battles, especially where the outcome involves large sums of money in the form of an inheritance.

One particular area where controversy can occur is the determination of a decedent's spouse. While it may appear to be routine to ascertain a person's wife or husband, difficulties can arise, particularly where individuals live in many different states and countries during their lives all of which have different rules and recording keeping methods for marriages and divorces. The determination of a decedent's surviving spouse is essential for many reasons. From a tax standpoint, the Federal and New York estate tax laws provide that assets passing to the surviving spouse qualify for a 100% marital deduction. A surviving spouse also has many rights under New York estate laws including the right of spousal election. A spousal right of election gives a surviving spouse the right to receive a share of the decedent's estate notwithstanding that the decedent may have disinherited the spouse. The New York right of election is provided in Estates, Powers and Trusts Law section 5-1.1-A.

In order to invoke the benefits of the statute, an individual must, in fact, be the decedent's surviving spouse. A recent case entitled Will of Newman decided by Surrogate John M. Czgier, Jr., in Suffolk County Surrogate's Court on September 26, 2011 and reported in the New York Law Journal on November 1, 2011, shows how important it is to closely examine the facts supporting a claim of spousal status.

In Newman, the decedent's spouse filed a right of election. It was determined after investigation that the surviving spouse and the decedent had gotten married on a date 3 months before the surviving spouse finalized a divorce from a prior marriage. Since the surviving spouse's prior marriage was not dissolved before the marriage to the decedent, the marriage between the decedent and the claiming surviving spouse was void. Thus, the right of election could not be asserted due to the invalidity of the marriage.

New York estate planning is also affected by spousal rights. Wills and trusts can be drafted to take advantage of the estate tax marital deduction and bequests can be provided to insure that spousal rights are satisfied.

I have represented estate fiduciarys and claimants in situations where spousal claims must be determined and resolved. I also provide assistance to clients to develop estate plans that take into account a spouse's right to share in an estate.

Kinship Proceedings In New York Require A Diligent Search for Heirs

Tue, 22 Nov 2011 16:44:59 -0500

All New York Probate and Administration cases require an accurate determination of the decedent's distributees or next of kin. In Brooklyn probate cases, as well as those throughout New York, proper notice of the Probate filing must be given to these persons. In Queens Administration proceedings, like all other such proceedings in New York, not only must distributees be ascertained for purposes of proper notice, their identities must also be established since the distributees are the direct beneficiaries of the estate.

While identifying next of kin may seem routine where a decedent is survived by a spouse or children or grandchildren ("issue"), many person's die without any easily identifiable heirs. In such cases estate settlement requires that kinship be determined.

Kinship searches require extensive examination of birth, death, marriage, naturalization and other records to determine not only the names of possible heirs but also to eliminate the possibility that living or deceased relatives did not have any other children or descendents. This is essentially known as closing out the class. Surrogate's Court kinship cases involve meticulous evidence, much of which can be obtained through the employment of a professional genealogist.

Many kinship proceedings such as Cousin Cases, where the closest next of kin are cousins, involve the Public Administrator which is a government official charged with the responsibility of estate administration of estates where close relatives are not known to exist or no one steps forward to commence Surrogate's Court proceedings.

In many instances the search for heirs results in a sort of dead-end. An heir may be identified but his or her whereabouts is unknown despite a diligent effort to locate him or her. Sometimes, it may be impossible to completely close out the possibility of additional heirs and provide proof that no one else exists as a possible distributee. In these situations, New York Surrogate's Court Procedure Act Section 2225 provides a method by which after 3 years following the decedent's death the law will presume that an identified heir may be presumed deceased without issue and unknown heirs may be presumed not to exist. In order to utilize this Statute, diligent and exhaustive searches must be shown to the Court to have been completed.

I have represented numerous clients in kinship matters. Extensive family research is needed in these cases and all individuals who have had contact with the decedent and have knowledge concerning family relations must be interviewed to determine whether they can be helpful as witnesses for the Court proceedings. Witnesses, as well as genealogists, may need to give testimony. Modern technology is used by the Courts to allow videoconferencing. Thus, testimony by individuals from around the world can be obtained without having to make witnesses travel long distances. This technology provides greater resources to the Courts and the heirs attempting to show their diligent search efforts.

New York Guardianship Requires Court Approval to Transfer Assets of Incapacitated Persons

Wed, 16 Nov 2011 14:59:13 -0500

Incapacity due to sudden illness or the effects of dementia and Alzheimers disease often results in the appointment of a Guardian under New York Mental Hygiene Law ("MHL") Article 81. The preparation of advanced directives such as a Durable Power of Attorney and Health Care Proxy may avoid such proceedings.

Once a Guardian of a person's property and/or personal needs is appointed by the Court, the Guardian's powers are usually set forth in the Court Order/Judgment that makes the appointment. MHL section 81.21 provides for property management powers and MHL section 81.22 provides for personal needs powers.

It is common for an incapacitated person ("IP") to own a home such as a single family house or a cooperative or condominium apartment. Typically, the Court Order which specifies the Guardian's fiduciary powers will provide that the Guardian is prohibited from selling the IP's home without further Court approval. New York Real Property Actions and Proceedings Law article 17 provides a detailed procedure for a Court approved sale of real property which usually involves an appraisal of the property and public advertising. The apparent goal of the law is aimed at insuring that a fair price is obtained for the property.

I have represented many clients in connection with Petitions for the Appointment of a Guardian and the Guardian's obtaining Court approval for the sale of real estate.

A recent case decided by the Honorable Alexander W. Hunter in Bronx Supreme Court on September 27, 2011 and reported in the New York Law Journal on October 14, 2011 entitled Matter of the Petition of M.H., shows some of the problems that can arise in these proceedings.

In M.H., title to a residential house was in the name of the IP's granddaughter (M.R.) subject to a life estate interest owned by the IP. The IP was 91 years of age and lived in a nursing home. The granddaughter wanted to sell the house and it was proposed to the Court that the life estate interest be transferred to the granddaughter who would then sell the house and give the Guardian an amount equal to the value of the IP's life estate interest.

The Court, however, did not approve the transaction for a number of reasons, including that there was no explanation as to why the life estate needed to be transferred to the granddaughter rather than sold by the Guardian as part of the transaction. The Court was also concerned about whether the granddaughter would pay the IP's share of the proceeds over to the Guardian after the sale.

M.H. is interesting because it shows the necessity of consulting with a good New York Guardianship attorney concerning the many complex issues that can arise in Guardianship cases. Although M.H. involved a Bronx Guardianship, the need to review all aspects of Guardianship Court proceedings is imperative no matter where the proceedings are held in New York.

Inheritance in New York Can Be Forfeited Where the Beneficiary Causes the Decedent's Death

Thu, 10 Nov 2011 16:20:05 -0500

Estate beneficiaries in New York can have rights to receive a share of a decedent's assets in a variety of circumstances. The beneficiary can be named in the decedent's Last Will or, if no Will exists ("intestacy"), the beneficiary may be one of the decedent's next of kin (a "distributee"). As provided in New York Estates, Powers and Trusts Law (EPTL) section 4-1.1 a distributee receives a share of the estate.

There are some situations, however, where the estate share may be forfeited by the beneficiary. For instance, EPTL 5-1.2 provides that interests of a surviving spouse may be lost under certain circumstances including the "abandonment of the deceased spouse" (EPTL 5-1.2(a)(6).

Another example of forfeiture that is recognized by the New York Surrogate's Court provides that a person who murders another forfeits his or her right to inherit from the victim's estate. This doctrine, which prevents a person from profiting from a wrongful act, seem fairly easy to apply where the murderer is convicted by the crime. The recent case of People v. Borukhova, a Queens, New York doctor who was convicted of hiring her cousin to kill her husband, would seem to satisfy the forfeiture criteria. However, all situations are not as clear. What if a person's death was due to alleged neglect or mistreatment and no criminal proceedings were instituted against the alleged wrongdoer. Such a situation occurred in Matter of Karp which was decided by New York County Surrogate Kristin Booth Glenn on September 22, 2011 and reported in the New York Law Journal on October 4, 2011.

In Karp the sister and nephews of the decedent claimed that the "decedent's wife of more than 15 years, intentionally or recklessly caused decedent's death and should therefore forfeit her interest in [his] multi-million dollar estate."

After reviewing the extensive evidence, the Surrogate found that the decedent died due to causes directly related to his own requests for termination of certain medical procedures and that no action on the part of his wife caused his death. Therefore, the Surrogate granted summary judgment dismissing the sister and nephews claim.

Although the claims in Karp were dismissed, the case does raise some interesting concerns for both pre-death care and post-death estate settlement. In Karp the decedent was very ill prior to his passing away. Issues may arise as to what responsibility a beneficiary may have to institute Article 81 Guardianship proceedings to have a guardian appointed to assist a person with health care and other personal needs decisions. When a person appears incapacitated can the failure by a beneficiary to assist him or her result in a forfeiture of an inheritance? Also, if a beneficiary is a health care agent under a Health Care Proxy, can he or she lose an inheritance in the event the health care decisions result in the decedent's death?

Finally, after a person has died, Executors, Administrators and estate beneficiaries may examine the circumstances leading up to death in order to consider whether a proceeding for forfeiture is a viable consideration. Bronx probate attorneys, as well as probate lawyers throughout New York, can review these matters and advise clients as to their rights.

Estate Disputes Should Be Avoided But Sometimes Never End

Tue, 08 Nov 2011 15:36:19 -0500

The New York Probate Lawyer Blog has reviewed many instances and issues regarding estate litigation, Will contests and disputes among heirs and beneficiaries. Sometimes controversies begin before a person dies when they become ill and incapacitated. Relatives and friends can abuse or breach fiduciary obligations in attempting to control a person's finances before death. Guardianship Proceedings, which are provided by Article 81 of the New York Mental Hygiene Law, are just a rehearsal for the battles that occur concerning assets and Wills after death. Westchester and Manhattan Guardianship attorneys, as well as guardianship lawyers throughout New York, have seen these disputes time and again.

An example of such pre-death contests appeared with regard to the actress Zsa Zsa Gabor. As reported in an article in Estate of Denial by Andy and Danielle Mayorals dated June 25, 2011, pre-death fighting between Ms. Gabor's husband (her ninth) and daughter revolved around each arranging for her to re-write her Last Will and the sale of her home and personal property.

Even after death occurs controversy regarding a decedent's estate and affairs can go on for years. It was recently reported by Daniel Kreps in Amplifier on May 6, 2011 that the estate of the late rock and roll star, Jimi Hendrix, was commencing a lawsuit over the ownership of master recordings made during concerts in 1969. Jimi Hendrix died on
September 18, 1970.

Another pending lawsuit involving the ownership of rights to the musical legacy of country singer, Jim Reeves, was reported in an article by Anita Wadhwani in The Tennessean on November 2, 2011. Jim Reeves died in 1964. However, none of the above appear to rival the almost daily notoriety surrounding the death of Michael Jackson.

A recent article in the AARP Bulletin by John F. Wosik on October 19, 2011 entitled "A To-Do List for Estate Planning" provides a brief guide for some estate planning considerations that may help avoid disputes. Among the items discussed are:
(1) A "Health Care power of attorney" known as a Health Care Proxy in New York. This document will specify the persons who can make health care decisions for you in the event you are unable to do so yourself.
(2) A "Financial power of attorney". This document will specify the persons who can make property management decisions for you when you are unavailable or unable to do so. The terms of the Power of Attorney can be limited and specifically defined according to your desires.
(3) "Wills and Trusts". These documents provide the foundation of your instructions and reflect the manner in which you want your property disposed of after death. Additionally, proper estate planning through Will and Trust provisions may provide appropriate tax benefits.

Consulting a good New York Estate planning and Guardianship attorney may help avoid the Surrogate's Court litigation that seems to forever encompass some estates. In view of the complexity of issues often involved in property and business ownership, breaches of fiduciary duty and beneficiary rights, disputes among family members and third parties are probably inevitable.

New York Estates Involve Disputes Regarding Lifetime Transfers

Tue, 01 Nov 2011 14:31:05 -0500

There have been a number of previous discussions in the New York Probate Lawyer Blog regarding disputes that arise when a decedent transfers assets to others prior to death. Such transfers are sometimes made to family members or to non-relative third parties. The problems and disputes that arise from such transfers basically involve whether the transfers were intended by the decedent to replace dispositions that were carefully set forth in a Last Will or Trust. In many instances, these lifetime transfers do not reflect the same estate plan as stated in a Last Will and often benefit one or more beneficiaries at the expense of others.

For example, a person may have bank funds in his or her name in a bank account that is bequeathed equally to a number of beneficiaries named in a Last Will or Trust. The person may have spent many hours reviewing his estate plan with his Probate Lawyer before finalizing the documents. However, prior to death, the person may add one of the beneficiaries to the bank account either as a joint owner or as a named beneficiary. In such a case, when the person dies, ownership of the bank account will automatically be in the named beneficiary and the account funds will not be included in the decedent's estate to be distributed to all of the beneficiaries designated in a Last Will or Trust. The question that arises is whether the decedent put the beneficiary's name on the account with the intent to benefit only the beneficiary or whether the name was added due to undue influence or without an understanding that such action would change the decedent's estate plan.

Such disputes are common in Surrogate's Court litigation throughout New York including the Bronx and Westchester Counties. Executors and Administrators are very often faced with the estate settlement task of attempting to recover assets for the estate that have been transferred to others.

A recent case in the New York County Surrogate's Court, entitled Matter of Appleby, was presented to Surrogate Kristin Booth Glen. In a decision dated September 12, 2011 and reported in the New York Law Journal on September 26, 2011, the Court was faced with a number of issues that arose concerning funds that a decedent allegedly loaned to her son prior to her death. The decedent's executor attempted to have the son's estate (the son died shortly after his mother) repay these funds to the decedent's estate. The son's executor had sought to have the case dismissed on various grounds but the Court, for the most part, decided that issues existed that needed to go to trial. The Court found that questions existed as to whether the monies given to the son were enforceable loans to be paid back to the decedent's estate.

It is always an important aspect of estate planning, to update and review not only the identity of assets and beneficiaries, but the manner in which assets are owned (ie, individually or jointly, etc.) and the impact such ownership may have on estate distribution.