Bronx

Published on: August 28, 2014

Issue in this Case is Whether Estate Venue is Proper

by Stephen Bilkis

A New York Probate Lawyer said that, this proceeding requires consideration of SCPA 205 (L 1984, ch 128, effective June 21, 1984) which substituted the flexible and waivable concept of venue for the inflexible and non-waivable concept of subject matter jurisdiction in all proceedings brought in the Surrogates’ Courts of the state. As a result of this new statute, each Surrogate’s Court in every county now has statewide subject matter jurisdiction subject only to the consideration of venue. An issue of the proper venue has been raised in this proceeding.

A New York Estate Lawyer said that, for many years before her death, decedent resided in New York County. On June 21, 1984, she was admitted to Montclair Nursing Home in Nassau County, where she died seven months later on January 31, 1985. The issue of venue arises because proceedings have been commenced in both the Surrogate’s Court of Nassau County and the Surrogate’s Court of New York County. On July 26, 1985, an instrument dated September 18, 1981 was offered for probate in Nassau County. Four days later, on July 30, 1985, decedent’s sole distributees (two nieces) petitioned for letters of administration in this court. Needless to say, these petitioners contend that the instrument propounded in Nassau County is invalid. The basis for their contention is not relevant to this decision.

The issue in this case is whether the venue of the estate proceeding is proper.

Published on: June 22, 2014

Heirs Bring Action Because they were Left Out of Mother’s Will

by Stephen Bilkis

A New York Probate Lawyer said a woman died survived by one sister and thirteen descendants of pre-deceased siblings. The deceased woman’s nephew, the Executor filed a Verified Petition to Probate a Last Will and Testament, dated April 17, 1996 in which he was the nominated Executor and in which he and his two siblings were named as the sole residuary beneficiaries. The Executor was granted Preliminary Letters Testamentary on October 29, 2009. Included in his Petition for Probate was an assertion by the decedent’s Executor that, after a diligent search and inquiry there exists no will, codicil or other testamentary instrument of the decedent later in date. The Petition also listed only the decedent’s one surviving sibling, and the Petitioner and his two sisters, omitting ten of the decedent’s distributees, all cousins of the Executor.

A New York Will Lawyer said the decedent’s one surviving sister and the ten distributees left out of the Petition for Probate, six nieces and nephews and four great-nieces and nephews of the decedent (Objectants), jointly retained their counsel and conducted an investigation that ultimately determined that the April 17, 1996 will probated by the Executor was not the decedent’s Last Will and Testament. Evidence was adduced that the decedent had executed a Last Will and Testament on July 11, 2000 and subsequently intentionally destroyed it. As the July 11, 2000 will revoked all prior wills of the decedent, its destruction would, in the absence of a subsequent will, result in the decedent’s property passing pursuant to the laws of intestacy and the Executor not being named as executor. Accordingly, on December 1, 2009, the Objectants filed a Verified Answer to the Executor’s Petition for Probate and Objections to the Probate of the April 17, 1996 Will.

Manhattan Probate Lawyers said the Executor did not concede to the validity of the July 11, 2000 will, and estate litigation commenced. The Objectants’ counsel secured affidavits from the draftsman of the later will, the attorney who oversaw its later destruction, and witnesses to the will’s execution and destruction. These parties were then deposed by the Executor’s counsel to ascertain if the decedent was mentally competent, under undue influence, duress, or if her actions were the product of fraud. No evidence of a lack of testamentary capacity was adduced at the five depositions conducted by the Executor’s counsel. However, the Executor continued to challenge the validity of the later will and claim that the decedent lacked testamentary capacity at its execution, causing a subpoena duces tecum to be issued seeking the decedent’s medical records.

Published on: June 17, 2014

Action Stems from Plaintiff’s Attempt to Purchase Real Property

by Stephen Bilkis

A New York Probate Lawyer said this action stems from plaintiff’s attempt to purchase certain real property, located at Bronx County (“subject property”), in August 2005, from four members of a family.

Manhattan Probate Lawyers said one of the members, a lady, died testate in February 1986. Under the terms of her Will, her husband had a life interest in certain properties, but not the subject property, only access to its garage. Article Sixth of the Last Will and Testament provided that their son had a life income interest in the subject property which was to be held in Trust by Trustees. The son’s daughters were allowed to occupy the first floor and second floor, respectively, and, upon the son’s death, the subject property was to be transferred jointly to the daughters, decedent’s granddaughters. The Will also provided that, upon the husband’s death, the son would substitute as Co-Executor and Co-Trustee in his place. The other Co-Executor and Co-Trustee attorney was never a party to the sale of the subject property. Further, the husband and the lawyer never obtained Letters of Co-Trusteeship for the Article Sixth Trust, and only the husband took action as an unauthorized Trustee with regards to the subject property.

A New York Will Lawyer said that Probate Petition and Notice of Probate were filed with the Surrogate’s Court in April 1988, naming the husband and the lawyer as Co-Executors and Co-Trustees. It also requested that Letters of Testamentary be issued to them and that Letters of Trusteeship be issued to them under the Article Third and to the lawyer under the Article Eleventh. Thereafter, the Surrogate’s Court issued Letters of Co-Testamentary and Co-Trusteeship to the Petitioners. However, the Letters of Trusteeship were limited to Articles Third and Eleventh Trusts. The Surrogate’s Court provided a letter to the GAL stating that no application for Letters of Trusteeship was issued under Article Sixth of the Will.

Published on: May 20, 2014

Probate Court Decides Tax Issue

by Stephen Bilkis

New York Probate Lawyers said the decedent died a resident of Nassau County and left a will. The will was admitted to probate by decree of the court and letters testamentary were issued to one of the decedent’s daughters. The decedent was also survived by another daughter.

A New York Will Lawyer said the decedent directed that all taxes and duties of any nature which may be assessed or imposed, either by the United States, the State of New York, or by any other jurisdiction, upon or with respect to property passing under the provisions of the Will or upon or with respect to property not passing under the provisions of the Will but upon which property such taxes are assessed or imposed, including all such taxes assessed or imposed upon the proceeds of any policies of insurance upon her life, be paid out of her residuary estate. Unless her residuary estate is insufficient to pay the taxes in full, no claim shall be made by her Executors for a contribution toward the payment of taxes against any beneficiary of this Will, other than the residuary beneficiary, or against any person who, by reason of her death, receives property outside the Will, or against any person who receives the proceeds of life insurance contracts.

Bronx Probate Lawyers said the executor has filed an account of her proceedings. The decedent’s daughter and niece have filed objections to the account. The objectants object to the Statement of Interested Parties, because they contend that one of the daughters is not a 50% residuary beneficiary as described therein but instead the sole residuary beneficiary. The objectants claim that the dispositions are pre-residuary legacies and not part of the residuary estate. The objectants also object to the manner in which the executor has allocated estate taxes. The objectants argue that the estate taxes should be borne entirely by one of the daughters since she is the sole residuary beneficiary under the Will.

Published on: May 14, 2014

Court Decides if Accounting Fees Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, submitted for decision in this accounting proceeding are the issues of attorney fees and accounting fees. Also submitted is approval of commissions to the Public Administrator. The Public Administrator also asks for approval of the disallowance of the claim of the niece of the decedent’s wife for reimbursement of travel expenses to attend the decedent’s funeral. The Public Administrator also requests authorization to pay the net estate to the Nassau County Department of Social Services.

A New York Will Lawyer said that, the decedent died on January 7, 2004, a resident of Nassau County. Letters of administration issued to the Public Administrator on April 7, 2004. The decedent’s only distributees were a nephew, and a niece. This is the Public Administrator’s first and final account. The summary statement shows charges to the accounting party of $100,656.86.

A Nassau Probate Lawyer said that, the decedent’s wife, predeceased the decedent having died on November 22, 2002. Upon her death, she was indebted to the Nassau County Department of Social Services in the amount of $177,320.57. Pursuant to Section 104 (1) of the Social Services Law of the Estate of New York, the Nassau County Department of Social Services is entitled to recover the cost of the care given to the decedent’s spouse from the decedent’s estate.

Published on: May 13, 2014

Court Rules on Petition for Letters of Administration

by Stephen Bilkis

A New York Probate Lawyer said that, this is an application for a certificate of letters of administration, which involves a question as to the status of the county treasurer as administrator, on which question there appears neither direct statutory provision nor decision directly in point.

A New York Will Lawyer said that, on June 23, 1960, the County Treasurer of Nassau County, was appointed administrator of this estate. On January 11, 1962, his term of office as county treasurer expired, and on February 5, 1962, the County treasurer, by his attorneys, requested a certificate of letters of administration in this estate.

A Brooklyn Probate Lawyers said that, on February 6, 1962, this court issued a decision in which it held that the present county treasurer, was interested in this matter, and directed that he be brought into this application. Subsequently, on February 9, 1962, the present county treasurer, by his attorney, filed a notice of appearance in which he opposed the issuance of the certificate of letters to the former treasurer and asserted that he, the present treasurer should be appointed successor administrator of this estate, and that he would petition for such appointment if the application of the former treasurer were denied. The application was submitted for determination, and both sides have submitted memoranda of law.

Published on: May 8, 2014

Fraud Alleged in Will Contest Proceeding

by Stephen Bilkis

A New York Probate Lawyer said the complainant alleges that she, along with her father and sister are joint tenants with rights of survivorship in a brokerage account maintained at a Securities Company. The account at the Securities Company was transferred to a joint account in a Financial Services Company. The complainant alleges that the joint account assets were transferred without her authorization to an individual account in the name of her father. She contends that the joint account holders’ written transfer authorization contained her forged signature. Two years later, her father died. In her complaint, the complainant wants to recover her lawful share of the funds in the joint and individual accounts.

A New York Will Lawyer said the defendant sister filed a Petition in the Surrogate’s Court for the probate of the decedent’s Last Will and Testament. The complainant was cited in the probate proceeding because she was adversely affected by the Will. The complainant took nothing under the Will. The complainant filed Objections to Probate of the Will in June, 2008. After conducting documentary discovery concerning the Will, the sister and the complainant entered into a Settlement Agreement pursuant to which the complainant executed a Withdrawal of Objections to Probate and Consent to Probate. The County Surrogate’s Court then issued a Decree admitting the Will to probate and issued Letters Testamentary to the sister. The consideration passing to the complainant under the Settlement Agreement consisted of personal property with respect to which the complainant claimed ownership. The parties agreed that the consideration referenced in the Agreement satisfied any right that the complainant had to any bequest, legacy, or other entitlement to the property of the Decedent or the Estate, wherever located. The complainant waived an accounting. The parties executed mutual general releases.

Bronx Probate Lawyers said the general release that the complainant executed in favor of her sister individually and in her fiduciary capacity may not be changed orally. The sister-in her individual and fiduciary capacity-executed a mutual release in favor of the complainant. The parties to the Settlement Agreement also agreed that the County Surrogate’s Court shall retain continuing jurisdiction in order to carry out, construe and enforce any of the terms of the Agreement.

Published on: May 5, 2014

Court Decides Degree Vacating Probate

by Stephen Bilkis

A New York Probate Lawyer said that, in this proceeding to vacate a decree of probate, the respondent, moves for an order pursuant to CPLR 2221 (d) and (e) renewing and rearguing her motion for an order directing the petitioner, to submit to a court admissible Sibling Full DNA Test at an established laboratory and provide a report of same to the attorneys for respondent. The petitioner, cross moves for an order pursuant to CPLR 2221 (d) and (e) granting renewal and rearguing this court’s decision dated June 29, 2011 (Decision No. 27229), and upon renewal and rearguing, granting the petitioner’s request that the court strike from said decision the language stating that it is conceded and undisputed that petitioner is the decedent’s son.

A New York Will Lawyer said that, the decedent died a resident of Nassau County on February 14, 2010. A will dated October 12, 2006 was admitted to probate and letters testamentary issued to the respondent, on May 6, 2010. The will left the decedent’s residuary estate in equal shares to his son, to his niece, the respondent, and to his nephew.

A Nassau Estate Litigation Lawyer said that, subsequent to the admission of the will to probate, the petitioner, commenced a proceeding, by order to show cause, to vacate the probate decree on the ground that she is a child of the decedent who was not cited in the probate proceeding. The respondent thereafter moved by order to show cause for an order directing the son and the petitioner to take a Sibling Full DNA test. By decision dated June 29, 2011, this court denied respondent s motion, without prejudice, as premature, until a notice for discovery and inspection is served upon his son or until he consents to the test. On July 5, 2011, the son was served with a notice for discovery and inspection for a Sibling Full DNA Test, and on July 6, 2011 he signed a written consent to such test.

Published on: March 23, 2014

Court Hears Case Regarding Validity of Will

by Stephen Bilkis

On 16 June 2006, the decedent, LS, died and was survived by his wife, MS, and his brother, WS. Allegedly, he left a will dated 11 October 1967. Under the will, the residuary must be equally shared by LS’ mother, H, and his brother, WS, and if either individual predeceased, his or her share to the surviving beneficiary. H predeceased.

A New York Probate Lawyer said that consequently, the will was offered for probate. MS objected to the will’s admission. WS, the brother of the decedent, in turn, moved for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument to probate on the ground that it is genuine and was duly executed, or, in the alternative, admitted to probate under the ancient document rule of evidence.

The objections:

Published on: March 12, 2014

Court Decides Case Regarding Submission of Final Decree

by Stephen Bilkis

A New York Probate Lawyer this contested probate proceeding the attorneys for the executor, on submission of a final decree for probate, seek an allowance in the amount of $20,000 for attorneys’ fees, to be charged personally against the respondent pursuant to SCPA 2302(3)(a). Respondent likewise seeks an allowance in the amount of $20,000 for expenses incurred in the contest.

A New York Will Lawyer said that this proceeding involved the probate of an instrument dated June 2, 1977 and a codicil dated August 11, 1977, both of which were offered for probate by the decedent’s stepson. The earlier instrument names respondent as executor and trustee. The second instrument names the respondent as executor and trustee, and five alternate executors.

Brooklyn Probate Lawyers said it is undisputed that respondent was the attorney-draftsman of both instruments as well as a witness to the instruments along with his wife. All of the competent beneficiaries consent to probate of the will and codicil and the guardian ad litem for one of the decedent’s daughters has filed a report stating that he can find no basis for objecting to the validity of the instruments.