Long Island

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 4, 2014

Petitioner Alleges Undue Influence

by Stephen Bilkis

A New York Probate Lawyer said that, in this contested probate proceeding, the proponent moves for an order pursuant to CPLR 3212 granting summary judgment dismissing objections to the offered will and admitting it to probate. The decedent died on March 19, 2006. Decedent had no issue nor any known relatives. The proponent was named as the sole residuary beneficiary in a prior will of the decedent dated December 1, 1993. The proponent is the daughter of the decedent’s predeceased husband, who died on November 3, 1998. The will offered for probate dated April 6, 1999 bequeaths one-half of decedent’s residuary estate to a long-time friend who resides in Germany, one-quarter to a neighbor, and one-quarter to another neighbor. A friend, is the nominated executor and the proponent.

A New York Will Lawyer said that, in December 1998, the proponent commenced a guardianship proceeding pursuant Article 81 of the Mental Hygiene Law in Supreme Court, Nassau County, alleging, among other things, that the decedent was incapable of managing her affairs. During the pendency of the guardianship proceeding, decedent executed a will dated January 11, 1999, in which she left her residuary estate to her friend, $50,000.00 to her neighbor and the sum of $1,000,000.00 to the American Red Cross. The January 1999 will was executed in the office of the attorney who drafted the will. The attorney first represented the decedent in the guardianship proceeding. The court evaluator appointed in the guardianship proceeding, reported to the Supreme Court that in his opinion, based on an interview with the decedent, decedent was not an incapacitated person and that no guardian was required. The guardianship proceeding was discontinued by stipulation dated March 22, 1999.

A Queens Probate Lawyers said that, the propounded will dated April 6, 1999 was also prepared by the said attorney. She met with the decedent on at least four occasions between the January 1999 will and the April 1999 will. The propounded will eliminated the bequest to the American Red Cross, increased the bequest to her neighbor and provided a bequest for another neighbor. The will was executed in the decedent’s home and the will’s execution was supervised by the said attorney. As referenced above, the decedent had previously executed a will dated December 1, 1993 that left her entire estate to her husband if living, or if not living, to the proponent. A second guardianship proceeding, commenced in July 2001 by the proponent, resulted in an order and judgment dated October 20, 2001 appointing the proponent and guardian for the personal needs of decedent and the guardian for the property management of decedent.

Published on: May 3, 2014

Court is Asked to Determine Attorneys Fees

by Stephen Bilkis

A New York Probate Lawyer said that, in this proceeding, the court is asked to determine the attorneys’ fees due the former counsel for the executors of the decedent’s estate. The decedent died a resident of Nassau County on January 30, 2011. A last will and testament, dated December 28, 1995, was admitted to probate by this court by decree dated May 11, 2011. Letters testamentary issued to co-executors of the decedent’s estate. Petitioner law firm had represented both of the co-executors in the probate proceeding, but due to a conflict of interest sought to withdraw as counsel.

A New York Will Lawyer said that, the petitioner submitted an affidavit of legal services, along with detailed time records which itemize the legal services provided and the disbursements made. The billing statements cover three time periods, namely: January 28, 2011 through August 16, 2011, as reflected in Invoice No. 16444, for the amount of $17,490.00 for services rendered, plus $1,528.58 for disbursements, less a credit for $1,280.00 paid; September 9, 2011 through November 22, 2011, as reflected in Invoice No. 16457, for the amount of $2,595.00; and December 5, 2011 through July 10, 2012, as reflected in Invoice No. 16543, for the amount of $11,267.50 The total fee requested by counsel is “a sum not less than $31,000.00,” plus disbursements of $1,582.58, of which $1,280.00 was already paid.

A Nassau Estate Litigation Lawyer said that, the legal services performed can be subdivided as follows: January 28, 2011- March 1, 2011: During this period, counsel spoke by telephone multiple times with a nominated co-executor, and with her daughter, , and he met with her daughter once. Counsel billed $1,295.00 for this work. March 2, 2011 – March 27, 2011: Counsel began working on the probate proceeding, including the family tree affidavit. According to the billing records, counsel also worked on researching and redeeming decedent’s savings bonds, a non-probate asset, as well as bonds belonging to the co-executor and her daughter. The charges for this time period come to $4,537.50. March 28, 2011 – July 17, 2011: On March 28, 2011, counsel sent a retainer letter to confirm that he had been engaged to represent them as co-executors of decedent’s estate and to assist in the transfer of non-testamentary assets. Counsel then continued working on the estate administration, including the renunciation of the other as co-executor and the appointment of the executor in her place. The services rendered included dealing with decedent’s medical bills and counsel’s interaction with banks. Beginning on June 28, 2011, counsel had an associate assist him with rendering legal services to the estate. Documents submitted by counsel indicate that on July 12, 2011, the day after his initial meeting with the co-executor, counsel noted for the first time that decedent’s bank records reflected pre-death transfers by check to the daughter as decedent’s attorney-in-fact. Counsel states that he discussed these checks with the co-executor and explained that they were irregular and might constitute self-dealing by the daughter. Counsel and co-executor agreed to review an additional year of statements. The billable time for this period totaled $7,535.00. July 18, 2011 – November 3, 2011: Counsel’s time records reflect that on July 18, 2011, he began to research the possibility that he had an ethical conflict in jointly representing the co-executors, based upon the exercise of a power of attorney granted by the decedent to which power had apparently been exercised to make transfers to the daughter and the co-executor. The records reflect that counsel continued to represent the co-executors while researching and discussing the issue with his clients. A list summarizing all of the transfers made by them was prepared and sent to both co-executors. Counsel reports that co-executor then advised counsel that he did not want to pursues a claim in connection with these transfers. On September 16, 2011, counsel wrote to the co-executor seeking written confirmation from him that he intended to waive any claim regarding the transfers made by the daughter. The Co-executor did not sign the letter as requested. Instead, he consulted with another law firm, which ultimately was substituted as the co-executor’s new counsel in this matter. The total amount billed for this time period, exclusive of disbursements, was $6,077.50.

Published on: April 9, 2014

Disinherited Daughter Challenges Will

by Stephen Bilkis

The decedent died leaving a will. The will nominates 2 s executors but one of them renounced his appointment. The decedent was survived by his two adult children.

A New York Probate Lawyer said that the will provides that the decedent’s entire residuary estate shall be distributed to decedent’s companion. The will specifically disinherits the decedent’s children. The executor has petitioned for preliminary letters testamentary.

By order to show cause, the decedent’s daughter seeks an order (i) denying the issuance of preliminary letters testamentary to the executor; (ii) disqualifying him from serving as executor of the estate; (iii) removing him as the attorney for the estate; (iv) compelling the executor to comply with discovery demands previously served; (v) compelling him to produce and file with the court an alleged 2004 will of the decedent; (vi) appointing a guardian ad litem to represent the interests of the decedent’s two infant grandchildren named as beneficiaries in the prior will; (vii) appointing the daughter as executor since she was alleged named as executor in the 2004 will; (viii) staying the issuance of preliminary letters to the executor pending a hearing on the order to show cause; and (ix)adjourning the SCPA 1404 examinations.

Published on: April 8, 2014

Court Rules on an Application for Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said this is an application for preliminary letters testamentary. The decedent died in December 2005 leaving a will (the “2005 Will”) and a prior will in January 2003 (the “2003 Will”). The 2003 will nominates the decedent’s daughter as executor and another daughter as successor executor. The 2005 will also nominates the first daughter as executor. The decedent was also survived by her other daughter.

A New York Will Lawyer said that the 2003 will bequeaths all shares that the decedent had in any companies or corporations to the decedent’s grandchildren, equally and the decedent’s bank accounts to her daughters equally. The 2003 will further provide for bequests of tangible personal property. The 2003 will gives the decedent’s cooperative apartment in equal shares. The remainder of the estate is bequeathed in one-third (1/3) shares to each of the decedent’s daughters.

The 2005 will gives all of the decedent’s jewelry to a daughter, and the balance of the decedent’s tangible personal property located in her home to another daughter and her husband. The 2005 will further provide for a bequest of the decedent’s joint bank account to the daughter executor or if she does not survive, to another daughter. Under Article FOURTH of the 2005 will, the residuary estate is bequeathed to the daughter executor.

Published on: April 4, 2014

Court Determines Fee to be Paid to Guardian Ad Litem

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on March 2, 2007, leaving a last will and testament dated June 4, 1993. A petition for probate was filed by a legatee under the will who was related to the decedent by marriage. By order dated February 1, 2010, the court appointed a guardian ad litem to represent the interests of decedent’s missing and unknown distributees. On February 3, 2012, the guardian ad litem filed his report recommending that the will be admitted to probate. At that time, he also filed an affirmation of services. At the request of the court, the guardian ad litem filed a supplemental affirmation on July 24, 2012.

A New York Will Lawyer said the issue in this case is the determination of the fee payable to the guardian ad litem.

Long Island Probate Lawyers said the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

Published on: March 22, 2014

Court Analyzes Will Due to Allegations of Undue Influence

by Stephen Bilkis

A New York Probate Lawyer said that the complainant moves to dismiss the objections filed contending that they are not legally cognizable. A deceased woman’s last will and testament nominated the accountant, her brother, as administrator of her estate and made him the beneficiary of the residuary that comprised 49% of the estate. The deceased’s son, who received a 35% share of the estate in trust, contested the will which was denied after the jury found the proponent had exercised undue influence. Preliminary letters then issued to the complainant were subsequently revoked.

A New York Will Lawyer said sources revealed that the first objection interposed to the account must be dismissed as legally insufficient. Further, no statute compels a fiduciary, prior to judicial settlement of his account, to make application to charge the estate with counsel fees acquired in offering the will for probate with the exception of an attorney-fiduciary who does not have at least one co-fiduciary who is not rendering legal services. Furthermore, an affidavit of services having been filed, the opponent’s claim that no documentation of the services rendered was presented lacks merit.

Queens Probate Attorneys said the center of the controversy revolves about the second objection which asserts the preliminary administrator has no right to recover commissions, or to charge the estate with counsel fees he incurred as the unsuccessful proponent.

Published on: March 11, 2014

Court Discusses Appointment of Guardian Ad Litem

by Stephen Bilkis

A New York Probate Lawyer said in this probate proceeding, the guardian ad litem for the decedent’s minor children has submitted a preliminary report wherein she recommends that the purported will be admitted to probate if construed and/or reformed as suggested in her report.

A New York Will Lawyer said that the decedent died in June 2006, a resident of Nassau County. The decedent was survived by her husband and her two minor daughters. The will offered for probate is dated October 20, 2000. The will nominates the decedent’s husband as executor. Preliminary letters testamentary issued to the decedent’s husband on June 21, 2006. The gross testamentary estate is valued between $10,000,000 and $15,000,000.

A Long Island Probate Lawyer said the purported will disposes of the residuary estate in two parts, Fund A and Fund B. Fund A is given to a trust for the decedent’s husband for his life with the remainder payable to the decedent’s two children, or the survivor of them. Fund B, is given to the decedent’s husband outright. The proffered will directs that estate taxes, or similar death taxes, with respect to testamentary assets are to be paid out of Fund B. Article Third expresses the decedent’s intention to take maximum advantage of the available tax benefits so that there will be no federal estate taxes due with respect to her estate.

Published on: January 3, 2014

Case Issue is Whether Court Erred in Denying Probate of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, the decree denying probate to the propounded instrument reserved for determination by supplemental decree all applications for costs, allowances, and fees. The attorney for petitioner who claims to be the sole statutory distributee of the decedent, asks the court to fix his reasonable compensation and costs and to direct payment from the general estate. The attorney did not proceed in the manner required by section 231-a, Surrogate’s Court Act, and hence his application must be based upon section 278. He is not entitled to costs or an allowance under that section. Even if he had proceeded under section 231-a, he would not be entitled to have his fee paid out of the general estate for he rendered no services of benefit to the estate. His services were solely for the benefit of his individual client.

A New York Will Lawyer said that, the position of the client was, as the attorney states, as anomalous one. A 1918 will has been admitted to probate in British Honduras ‘until a later Will be found’. A 1955 instrument was offered for probate here as a lost will. It was to the interest of the alleged distributee that the 1955 instrument be proved to have been duly executed (thus revoking the 1918 will), but that it be denied probate on the ground that it was not in existence at the time of the decedent’s death. The attorney was thus partly on one side in the contested probate proceeding and partly on the other side. He accordingly filed no pleading and took no active part in the contest. Before submission of the case to the jury he made motions appropriate to his client’s interests. He was otherwise quiescent, hopeful that the contending factions would destroy each other. The verdict of the jury was against the proponent on the question of the making of the will.

A Queens Probate Attorney said that, the attorney’s present contention that he represents a party who has succeeded in the contest is contrary to the record herein. He attempted to serve only his own client’s interests, he rendered no services of benefit to the estate and he was not successful insofar as his client’s cause is concerned. There is no basis for allowing him costs, compensation or allowance out of this estate. The attorney for the proponent in the probate proceeding request an allowance for their services. In prohibiting an award of costs to an unsuccessful contestant in a probate proceeding, section 278 explicitly excepts from that prohibition one ‘named as an executor in a paper propounded by him in good faith’, and it further affirmatively provides that ‘where a person named as the executor in a will propounds the will for probate, such person so named as executor may, whether successful or not, in the discretion of the surrogate, be awarded costs and all necessary disbursements made by him and all expenses incurred in the attempt to sustain the will.’