Brooklyn

Published on: October 10, 2014

court Decides if Opposition to Will Should be Barred due to Six Year Statute of Limitations

by Stephen Bilkis

A New York Probate Lawyer said that, this is a proceeding to vacate a decree of probate and to allow the petitioners to withdraw the waivers of process, consents to probate they executed on May 17, 1999. The petitioners are the decedent’s four adult children, the executor of the estate, opposes the requested relief. Respondent is the decedent’s surviving spouse; he and the decedent were married in November 1991. The husband is not the father of the petitioners.

A Bronx Estate Litigation Lawyer said that, on February 20, 2008, the court issued a decision and order wherein the court granted the petitioners’ counsel’s unopposed motion to withdraw as the petitioners’ counsel and stayed the proceedings for 30 days after a copy of the order was served by overnight delivery on the petitioners. A copy of the order was served as directed, and the period of the stay has expired. The petition to vacate the decree granting probate and for other relief has now been submitted for decision.

A New York Estate Lawyer said that, the decedent died on December 5, 1998 at the age of 57. Her last will and testament dated March 11, 1995 was admitted to probate by decree dated July 29, 1999, and letters testamentary were issued to the husband. The affidavit of subscribing witnesses annexed to the will states that the will was executed under the supervision of an attorney. The decedent left her entire estate to her husband. In the event that the husband had predeceased the decedent, the decedent bequeathed the estate to the petitioners, per stirpes.

Published on: September 14, 2014

Issue in this Case is the Source of Payment for the Guardian ad Liten

by Stephen Bilkis

New York Probate Lawyers said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will “pours over” into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).

The court finds that the fee may be paid from trust assets.

On 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the “F Revocable Trust U/A dated 24 October 2003.” At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent’s long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent’s assets were transferred to the trust while he was alive. As a result, the will was designed to be a “catch all” so that any stray assets left in the decedent’s estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

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: July 10, 2014

Court Decides a Case Regarding Kinship Issues

by Stephen Bilkis

A New York Probate Lawyer said this is a case of accounting of the Public Administrator, where the issue of kinship was referred to a court attorney/referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence, and the arguments made by the attorneys for the claimants and the guardian ad litem representing the interests of unknown distributees.

A New York Will Lawyer said that the decedent died intestate, a resident of Nassau County, in May 2006. Letters of administration issued to the Public Administrator in January 2007. The account filed by the Public Administrator shows the receipt of $354,397.29 of estate assets. There are three alleged maternal cousins of the decedent and seven alleged paternal first cousins of the decedent.

Long Island Probate Lawyers said that in order to establish their rights as distributees, claimants in a kinship proceeding must prove: (1) their relationship to the decedent; (2) the absence of any person with a closer degree of consanguinity to the decedent; and (3) the number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take. Claimants who allege to be distributees of the decedent have the burden of proof on each of these elements. The quantum of proof required to prove kinship is a fair preponderance of the credible evidence.

Published on: May 23, 2014

Court Decides Case Regarding Foreclosure of Estate Property

by Stephen Bilkis

In an action transferred to this court from Supreme Court, Nassau County, defendant, a house loan corporation, one of several defendants, moves the court for an order dismissing the complaint as against it. Plaintiffs oppose Countrywide’s motion and cross-move for summary judgment dismissing Countrywide’s answer, or, in the alternative, striking Countrywide’s fourth and seventh affirmative defenses.

A New York Probate Lawyer said that this action emanates from a foreclosure proceeding involving property located at Hempstead, New York. That property was owned by an individual who died intestate in July 1986. Her brother administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that the sole distributee and that the subject property vested in him immediately upon his sister’s death. The other then died testate on June 9, 1994. The deceased was appointed the voluntary administrator of the estate.

The court’s file contains the original will which devises and bequeaths all of his property to his cousin who died in August 2000. There was no deed executed from the estate of the first decedent to the second, nor was there a deed from the estate to the deceased executor. Although the original will was filed in the court incident to the voluntary administration of the estate of the second decedent, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the decedent, the administrators of his estate, and claim to be his only distributees.

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 17, 2014

Petitioner Requests an Accounting Regarding Real Estate Holdings

by Stephen Bilkis

A New York Probate Lawyer said this action for an accounting was commenced on August 14, 2009. In the first cause of action, the complainant seeks an accounting with respect to the affairs of a chain of stores. In the second cause of action, the complainant seeks an accounting with respect to the affairs of the real estate company. In the third cause of action, the complainant seeks a declaratory judgment that the mediation settlement agreement does not cover her claims for an accounting.

A New York Will Lawyer said the defendant woman moves to dismiss the complaint for lack of personal jurisdiction. She argues that the estate has no contacts with New York. Civil Practice Law Rules (CPLR) provides that a court may exercise personal jurisdiction over any non-domiciliary, or his executor or estate administrator, who in person or through an agent, transacts any business within the state as to a cause of action arising from the transaction of business. Prior to his demise, the decedent was involved in the management of all six of the partnerships. The complainants’ causes of action for an accounting relate to the properties located in Queens. Thus, the complainants’ causes of action for an accounting arise from activity carried on by the decedent in New York State. Moreover, the decedent had additional contact with New York by virtue of having received letters testamentary from the Nassau Surrogate’s Court. Since the decedent transacted business in New York, the court may exercise personal jurisdiction over his executrix with respect to a cause of action arising from the transaction. The defendant woman’s motion to dismiss for lack of personal jurisdiction is denied.

Brooklyn Probate Lawyers said the defendant woman argues that any claim asserted by the complainant pursuant to the receipt, release, and refunding agreement is barred by the one year time limit applicable to claims against the decedent’s estates in Massachusetts probate proceedings.

Published on: May 16, 2014

Court Discusses Action for Accounting

by Stephen Bilkis

A New York Probate Lawyer said this action for an accounting was commenced on August 14, 2009. In the first cause of action, the complainant seeks an accounting with respect to the affairs of a chain of stores. In the second cause of action, the complainant seeks an accounting with respect to the affairs of the real estate company. In the third cause of action, the complainant seeks a declaratory judgment that the mediation settlement agreement does not cover her claims for an accounting.

A New York Will Lawyer said the defendant woman moves to dismiss the complaint for lack of personal jurisdiction. She argues that the estate has no contacts with New York. Civil Practice Law Rules (CPLR) provides that a court may exercise personal jurisdiction over any non-domiciliary, or his executor or estate administrator, who in person or through an agent, transacts any business within the state as to a cause of action arising from the transaction of business. Prior to his demise, the decedent was involved in the management of all six of the partnerships. The complainants’ causes of action for an accounting relate to the properties located in Queens. Thus, the complainants’ causes of action for an accounting arise from activity carried on by the decedent in New York State. Moreover, the decedent had additional contact with New York by virtue of having received letters testamentary from the Nassau Surrogate’s Court. Since the decedent transacted business in New York, the court may exercise personal jurisdiction over his executrix with respect to a cause of action arising from the transaction. The defendant woman’s motion to dismiss for lack of personal jurisdiction is denied.

Brooklyn Probate Lawyers said the defendant woman argues that any claim asserted by the complainant pursuant to the receipt, release, and refunding agreement is barred by the one year time limit applicable to claims against the decedent’s estates in Massachusetts probate proceedings.

Published on: May 13, 2014

The Issue in this Case is Whether Probate of the Will Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, before the court are two separate but related matters which were filed in connection with the estate of the decedent who died on July 15, 2003, leaving a last will and testament dated April 21, 1989. The will divides decedent’s residuary estate equally among her four adult children. One is the nominated executor under the terms of decedent’s will, but when the will was offered for probate, decedent’s other children objected to his appointment. On December 17, 2003, an agreement was reached by all parties in open court, pursuant to which the will was admitted to probate on March 1, 2004 and the Public Administrator of Nassau County was appointed as administrator, c.t.a.

A New York Will Lawyer said that, the first matter to be addressed is the petition filed by the Public Administrator, dated May 2, 2005, which asks the court to settle his account as administrator, c.t.a. and approve legal fees and a fee for the accountant for the Public Administrator. The petition further requests that the court approve fees for the attorney who represented the executor in his petition to serve as the nominated executor under the will, allow reimbursement of certain funeral expenses paid by the daughter, and approve the payment of commissions and distributions.

A Long Island Probate Lawyers said that, the second matter before the court is a motion brought by the counsel for the executor (son), as the nominated executor. Movant asks the court to award costs and attorney’s fees and impose sanctions on the other brothers, the objectants to the accounting, pursuant to Rules of the Chief Administrator of the Court, 22 NYCRR §130-1.1. Under this section, the court may award to any party or attorney the costs and attorney’s fees resulting from frivolous conduct and may impose financial sanctions. Neither brother have responded to the motion.

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.