Nassau

Published on: September 17, 2014

Court Finds Issues with Preprinted Trust

by Stephen Bilkis

A New York Probate Lawyer said that, this case, and an analogous matter decided on the same day, raise troubling questions about the use of pre-printed or form living trusts, which are now being heavily marketed in New York State. The instant case is especially disturbing, because its trust takes the form of loose pages contained in a three ring binder. The proceeding was initiated by the petitioner” for the probate of the Will of the decedent who died on September 9, 1996. The decedent’s Will, executed April 30, 1996, leaves his entire estate to the ” Revocable Living Trust dated April 30, 1996 and any amendments thereto.” The trust agreement provides for lifetime income and principal payments to the decedent as he directs. Upon the decedent’s death the principal remaining is to be distributed to the petitioner, a friend. An alleged amendment leaves 99.75% of the principal balance to the petitioner and .25% to another friend. The decedent is the sole lifetime trustee. The petitioner is either sole personal representative under the Will and sole successor trustee under the trust, or a co-fiduciary in each. A prior Will, dated October 24, 1990, which bequeathed one tenth of one percent of the estate outright to the other friend and the balance to the petitioner, was also filed with the court. The decedent left assets of about $1 million, of which approximately $950,000 had been transferred into the trust and passes according to its terms and $60,000 remained in his name at death and passes according to the provisions of the Will.

A New York Estate Lawyer said that, in reviewing the probate submissions, the court discovered that both the Will and the trust were so ambiguously worded that it was impossible to determine the decedent’s wishes regarding one of the most fundamental elements of his estate plan–the nomination of the fiduciary. Further examination of the documents revealed a staggering number of additional ambiguities, inconsistencies, apparent irrelevancies, and outright errors, many of which pose major problems in ascertaining or effectuating the decedent’s dispositive intent.

A Nassau County Probate Lawyers said that, at this same time, another construction proceeding involving a form living trust, which contained provisions analogous to those in the document already under review, was brought before the court. The executor of the Will of concerned that the merger of legal and equitable interests in her father’s trust might render it ineffective and hence not a proper receptacle for the pour-over of his estate assets, sought a construction permitting all of the property to be disposed of according to the trust’s terms. Faced with the Howard request for construction of similar provisions, as well as with the immediate need in the instant case to identify the fiduciary and to ascertain the decedent’s intentions regarding other significant provisions of both instruments, this court determined that a construction of the instant Will and trust was necessary at the present time. The Surrogate’s Court has the power to construe a Will when construction is necessary to determine questions in a proceeding before it or to make a complete disposition of a matter. Because one major obscurity concerning the ultimate disposition of the probate estate in the instant matter involved minors or unborn as possible takers, a guardian ad litem was appointed.

Published on: August 23, 2014

Court Decides Case Regarding Constructive Trust

by Stephen Bilkis

A New York Probate Lawyer said this action to vacate a deed or impress a constructive trust was originally initiated by a man, and was transferred to another court by order. The man, as the estate administrator, requests for a decision without proceeding. A woman however cross moved the motion for a declaration that the transfer was a valid gift.

The estate came from their mother who died leaving a last will which was admitted to probate. Letters testamentary was then issued to the estate administrator. In addition to the two parties, the deceased woman was survived by three other children.

A New York Estate Lawyer said that prior to entering an assisted living facility, the deceased woman resided at her own residences. Later, the deceased woman purportedly transferred her interest in the premises to her daughter and reserved a life estate.

Published on: June 21, 2014

Will Challenged on the Grounds of Undue Influence

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding where JPM Bank (JPM), co-executor, moved pursuant to CPLR §5015(a)(2) to vacate the decree admitting to probate the decedent’s will dated 24 June 2005 (2005 Will) due to newly discovered evidence. Several charities, the residuary legatees under a prior instrument that are adversely affected by the 2005 Will, join in the application; and, movants seek removal of JPM’s co-executors and appointment of JPM as sole preliminary executor.

The following are the pertinent events that took place:

On 12 September 2005, the decedent died at the age of 93 years. He was survived by two nephews, MF and SF, and the issue of a predeceased nephew. On 21 February 2006, the 2005 Will was admitted to probate by decree and letters testamentary thereupon issued to JPM, MF and ME.

Published on: June 19, 2014

Court Decides Motion for Summary Judgment

by Stephen Bilkis

A New York Probate Lawyer said the decedent died and her only distributee, other than the proponent and the objectant, is her daughter. The testamentary assets are valued at $6,000,000. The propounded instrument establishes a trust for the benefit of the proponent equal to the unified credit. It also contains legacies of $25,000 for each of the decedent’s seven grandchildren, including the objectant’s three children. The residuary estate is bequeathed outright to the proponent and the remainder interest in the unified credit trust is bequeathed to the decedent’s daughter or, if she does not survive the proponent, to the daughter’s four children. Paragraph Seventh of the instrument explains that no greater provisions have been made for the objectant because the decedent had provided for his children during her lifetime and because he will receive benefits in the future in the practice of the law commenced by the decedent’s husband in 1947. The propounded instrument contains an attestation clause and its execution was supervised by the proponent, an attorney.

Nassau County Probate Lawyers said in support of the motion, the proponent has submitted an affidavit from his attorney, an affidavit from the sole surviving attesting witness indicating that the instrument was executed with the required statutory formalities, and the deposition of the witness. The attesting witnesses couple who lived in the same apartment house as the decedent and the proponent and had been their friends for many years. The witness husband predeceased the decedent. The witness wife was 84 years of age when she was deposed. Understandably, she did not recall all of the particulars of the execution ceremony that had occurred more than a decade prior to the deposition. However, she did recollect that the execution ceremony took place in either her own apartment or the decedent’s apartment; that the only people who were present were herself, her husband, the decedent and the proponent; and that she knew that the decedent was executing a will and that she was acting as an attesting witness.

Here, a Staten Island Probate Lawyer said the motion for summary judgment is predicated upon the deposition which occurred prior to the filing of objections and, thus, prior to the provisions of Surrogate Court’s Procedure Act (SCPA) coming into play. Moreover, the two primary beneficiaries under the will support the instant motion. Thus, the only beneficiaries who could conceivably be prejudiced by not having received formal notice of the objections pursuant to SCPA are the grandchildren, who each receive a $25,000 legacy. One of the grandchildren is a minor. If jurisdiction had been obtained over him pursuant to SCPA, it would appear that the proceeding would be burdened with the expense of having a guardian ad litem appointed for him. However, it does not appear that either the objectant or any of the grandchildren will be prejudiced by the court’s entertaining this motion prior to the service of the SCPA citation upon the grandchildren notifying them that objections have been filed. To the extent that the motion is granted, the determination will inure to the grandchildren’s benefit. To the extent that the motion is denied, they would still have the right to participate in all future pretrial procedures or proceedings, including a motion for summary judgment based upon evidence adduced at such procedures. Considering these facts, the court, in the exercise of its discretion, concludes that it may entertain the instant motion notwithstanding the fact that SCPA jurisdiction has yet to be obtained over the grandchildren. Of course, if the objectant were the party who was seeking summary judgment, the court would not entertain the motion until SCPA jurisdiction had been completed. This is so because SCPA provides that beneficiaries who were not served with the SCPA citation would not be bound by the determination denying probate to the propounded instrument.

Published on: June 15, 2014

Petitioner Files Probate Action Based on Will Contest

by Stephen Bilkis

A New York Probate Lawyer said on 17 June 2007, seven months after executing her will, the decedent, AB, died. Her husband predeceased her in 2001, and she never had any children, biological or adopted. The decedent was survived by six distributees: NK, GKH, and EKS (children of the decedent’s predeceased brother, HK; and, DK, BK, and KK (the children of decedent’s predeceased nephew, RK, and who apparently spell their surname differently, with a double last letter). The six distributees reside in Australia.

The proponent and executor, G, had been employed by the decedent as a full-time caregiver who lived in the decedent’s home.

A New York Will Lawyer said on 21 September 2007, G filed a petition for probate, stating that the decedent left no distributees, surviving or deceased. Under Paragraph 6(a) of the petition, the “name and relationship” of all persons with a “legacy, devise or other interest, or nature of fiduciary status” is asked. In G’s original probate petition, she stated that she was the decedent’s live-in companion and the beneficiary of the decedent’s entire estate, as well as the designated executor. The only other individual named by G as a person interested in the decedent’s estate is G’s sister, RG, a resident of Ukraine, who is listed as the successor beneficiary of the decedent’s entire estate and the nominated successor executor. The petition reflects 23 Alexander Drive in Oyster Bay, which had been the decedent’s home, as G’s address. In response to question 8(a), which asks whether “any beneficiary under the propounded will, listed in Paragraph 6 or 7 above, had a confidential relationship to the decedent,” G indicated that she, “petitioner,” had a confidential relationship with the decedent.

Published on: May 25, 2014

Administrator Moves to Dismiss Petition by Two Creditors

by Stephen Bilkis

In this miscellaneous proceeding, the respondent, administrator de bonis non, moves to dismiss the petition by two alleged creditors for revocation of his letters pursuant to CPLR 3211 (a) (2) and (3).

A New York Probate Lawyer said that the decedent died in April 1939, intestate. The decedent was the writer of some classic songs. He was survived by his wife and his father. Pursuant to the law of intestacy applicable at the time of the decedent’s death, the survivors were the decedent’s only distributees. In May 1939, the wife was appointed administrator of the decedent’s estate. She died in November 1973, a resident of New York County. She left a last will and testament which nominated executors. The first executor died in January 1983 leaving a will. Letters testamentary in his estate issued to his co-executor.

A New York Will Lawyer said the respondent, who alleges that he is a grandnephew of the decedent, petitioned for letters of administration de bonis non with respect to the decedent’s estate by petition dated September 21, 2009. The petition filed by him in the administration proceeding recites that the decedent had eight brothers and sisters who were deceased and that five nephews/nieces and seventeen great-nephews/great-nieces “were surviving.” Nicholas’ petition for letters of administration de bonis non was supported by waivers and consents of twenty-one of the distributees identified and citation issued to one alleged distributee who did not appear on the return date. According to his petition, the value of the assets in need of administration was $9,000.00.

Published on: May 21, 2014

Public Administrator Asks Court To Disallow Attorneys Fees

by Stephen Bilkis

A New York Probate Lawyer said a man died intestate, a resident and domiciliary of Nassau County. Letters of estate administration were issued to the Public Administrator. The account filed by the Public Administrator shows total charges of $614,863.33, total credits of $72,849.32 and a balance on hand of $595,994.34. Objections to the account were filed by people who claim to be distributees of the decedent. They objected to the disallowance of their claims against the decedent’s estate and the Public Administrator’s request to distribute the net estate to the New York State Comptroller for the benefit of the decedent’s unknown distributees, and they reserved their right to object to the Public Administrator’s legal fees, but ultimately did not object to them. Thereafter, the Public Administrator filed an affidavit bringing the account current. It shows total charges of $677,462.32 and total credits and cash on hand of $677,462.32.

The record reflects that a diligent and exhaustive search was made to discover evidence of other possible distributees. Since more than three years have elapsed since the decedent’s death, the known heirs are entitled to the benefit of the presumption of Surrogate’s Court Procedure Act (SCPA). Therefore, based upon the evidence before the court, it is held that the decedent is survived by five distributees: one paternal cousin and four maternal cousins. Pursuant to Estates Powers and Trusts Law (EPTL), one-half of the decedent’s property passes to the issue of paternal grandparents, by representation, and one-half to the issue of maternal grandparents, by representation.

A New York Will Lawyer said that durning to the accounting, the Public Administrator’s reimbursement in the amount of $7,469.00 for the decedent’s funeral is approved as a reasonable and necessary estate administration expense. The Public Administrator has asked for the court’s approval for disallowing the claims for payment of legal fees; for cleaning services at the decedent’s residence; for cleaning services at the decedent’s residence; and for cleaning services at the decedent’s residence. The basis of the Public Administrator’s rejection of the claims is that these individuals were not authorized by the Public Administrator to provide cleaning services to the estate. These four claims have now been withdrawn, making the request for approval of their disallowance moot. The claim of the oil company is disallowed for failure to submit documentary evidence sufficient to substantiate such claim and for failure to complete and return the affidavit of claim required by SCPA.

Published on: May 18, 2014

Court Discusses Jurisdiction Issues

by Stephen Bilkis

A New York Probate Lawyer this probate proceeding, objections were filed and a jury demanded by the respondents. A motion is made by them to dismiss the petition before any trial on the merits upon the ground that the decedent was not a (domiciliary) resident of Nassau County at her death. They request that the proceeding be forwarded to New York County as the proper county of residence and also for the convenience of witnesses.

In support of the motion, there have been filed affidavits of respondents’ attorney and of respondent man along with copies of affidavits and exhibits which had been previously submitted to the court in connection with an application to revoke letters testamentary which had been issued to the proponent here on the estate of the decedent’s husband, who died on May 26, 1975.

A New York Will Lawyer in opposition to the motion various other facts are asserted to sustain proponent’s claim that Nassau County was the domiciliary residence of decedent and both attorneys have submitted memoranda in support of their respective positions. The court has examined them and will discuss below the various facts alleged by both sides.

Published on: May 11, 2014

Petitioner Moves for Formal Accounting in Estate Litigation

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on December 28, 2010, survived by his sister, the petitioner; and by his brothers respondent and movant herein, and. The decedent’s last will and testament dated May 23, 2000 was offered for probate by the petitioner, who is named as the sole beneficiary of the decedent’s residuary estate, as well as the executrix in the propounded instrument. Preliminary letters testamentary issued to the petitioner by order of this court on January 13, 2011. Respondent and the movant have filed objections to probate of the will.

A New York Will Lawyer said that, the disputes presently before the court all relate to a supermarket, which was run by the decedent and his brother. The supermarket, located at 601 Old Country Road in Plainview, New York, is comprised of three separate closely held corporations: (1) 601 Corp., which operates the grocery and dry goods business within the supermarket, and was owned by decedent and his brother as equal 50% shareholders; (2) Captain Joe’s Fish Corp. (Captain Joe’s), which sells fish and seafood at John’s Farms, and was owned by decedent and his brother as equal 50% shareholders; and (3) BNC, which operates a meat market within John’s Farms, which was owned wholly by decedent.

A Nassau County Probate Lawyers said that, the decedent’s sister commenced a SCPA 2103 discovery proceeding against respondents and the CPA as the accountant for John’s Farms, in order to, inter alia, prevent the decedent’s brother interference with the operation of BNC and to compel him to turn over the cash receipts of BNC from the date of the decedent’s death to the present; to prevent him interference with the petitioner’s right to take part in the management of Captain Joe’s and 601 Corp. and to gain full access to the records of those corporations; to compel the brother to make available to the petitioner the books and records of the decedent, BNC, 601 Corp. and Captain Joe’s; and to compel the brother to turn over the computer and other items he took from the decedent’s home.

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.