Nassau

Published on: May 2, 2014

Court is Asked to Dispense with Filing of a Bond

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested probate proceeding, the court is asked to dispense with the filing of a bond by the nominated trustee due to a purported scrivener’s error in the will. The decedent died a resident of Nassau County on February 4, 2007. A will dated September 20, 2006 has been offered for probate by the nominated executor. The executor is the decedent’s husband. The decedent was also survived by two adult children, an adult grandchild and two minor grandchildren.

A New York Will Lawyer said that, Article FOURTH of the will creates a trust to be funded with the “exemption amount.” The trust terminates upon the executor’s death, and he has a limited testamentary power of appointment over the trust principal. If or to the extent that he fails to exercise the limited power of appointment, the remaining trust principal is payable to his 1993 Insurance Trust. The residuary estate is payable to him. The will nominates the husband as trustee and the decedent’s children as successor trustees.

Nassau County Probate Lawyers said the issue in this case is whether the executor husband can be dispense with the filing of a bond by the nominated trustee due to a purported scrivener’s error in the will.

Published on: April 7, 2014

Court Decides Case Where Will is Lost

by Stephen Bilkis

A New York Probate Lawyer said by this proceeding, the petitioner, the nominated fiduciary, seeks to admit to probate a copy of the last will of decedent, the original not being found after the death of the testator. The decedent’s will was executed in 2009.

A New York Will Lawyer said that the decedent was survived by her husband and three children, two of whom are minors. A guardian ad litem was appointed for the minor children and has filed a report in which he recommends that the lost will be admitted to probate and that the court approve a stipulation of settlement providing the same. The decedent’s will provides for the distribution of her assets to her children. The will provides in Article Fifth (b) that the decedent leaves no portion of the residue to her husband, not because of any lack of affection for him, but because he is the sole beneficiary of a life insurance policy in the face amount of $1,000,000 and he will also become the sole owner of their home as well as a condominium in Florida. The decedent’s husband filed objections to the lost will being admitted to probate which were later withdrawn by the proposed stipulation of settlement.

In order to have the copy of the will probated, petitioner relies on the provisions of SCPA 1407 which provide: A lost or destroyed will may be admitted to probate only if: 1. It is established that the will has not been revoked, and 2. Execution of the will is proved in the manner required for the probate of an existing will, and 3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

Published on: March 29, 2014

Petitioner Requests Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said this probate proceeding, two of the three preliminary executors move for an order disqualifying their former attorneys from representing the objectants; the motion is opposed.

A New York Will Lawyer said that the decedent died in November 2010, survived by a spouse and two adult children. The decedent executed a will in 1990, a first codicil in 2003, and a second codicil in 2010. In the first codicil, the decedent appointed his son, his attorney, and his accountant, as co-executors and co-trustees. Objections have been filed by decedent’s children only as to the second codicil, the only dispositive provision of which leaves the decedent’s residence in Sands Point, New York to the decedent’s spouse; the will had merely provided her with the right to occupy the decedent’s residence for up to eighteen months after the decedent’s death.

Nassau County Probate Lawyers said the lawyer and the accountant filed a petition for the probate of all three instruments and for the issuance of letters testamentary and preliminary letters testamentary to the two of them, to the exclusion of the son. As indicated above, the son and his sister objected to the probate of the second codicil, and also to the prayer for the issuance of preliminary letters solely to the lawyer and accountant. The dispute regarding the preliminary letters was resolved and preliminary letters testamentary issued to all three nominated executors in February 2011.

Published on: March 26, 2014

Court Rules on Estate Case Regarding Jurisdictional Issues

by Stephen Bilkis

A New York Probate Lawyer said the petition for letters of estate administration is opposed by the deceased father’s son and daughter who have filed with their objections papers certifying that their father’s will was probated in the Superior Court for the District of Montreal, Quebec, on December 14, 1962. The certificate indicates the will was probated without notice to the heirs and legatees of the deceased.

The petition for letters alleges that the father died intestate a resident of Nassau County. The objectant son and daughter challenge the allegation of residence in this county, and further contend that letters of estate administration may not be granted when the deceased left a will.

A New York Will Lawyer said that assuming the deceased father to be a non-resident and a will has been admitted to probate or established in another state or country, jurisdiction over original probate or administration in this state has been refused. Under such circumstances the Surrogate Court is limited to the issuance of ancillary letters upon proper application, accompanied by a copy of the will and of the foreign letters properly authenticated.

Published on: March 16, 2014

Court Discusses Reasonable Attorney’s Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, submitted for decision in this accounting proceeding are the issues of (i) attorney’s fees; (ii) accountant’s fees; and (iii) commissions. The decedent, died on February 26, 1996, a resident of Nassau County, leaving a will dated March 9, 1984. The will was admitted to probate by decree dated May 18, 2004, and letters of administration issued to the Public Administrator on the same date. The summary statement shows charges to the accounting party of $289,650.33. This is the Public Administrator’s first and final accounting. The decedent’s will, after the payment of a $2,000.00 bequest to Mercy Hospital, Rockville Centre, New York, directs that the decedent’s residuary estate be paid to the Diabetes Association of New York, Inc. The Attorney General of the State of New York has appeared in this proceeding.

The issue in this case is whether the accounting matters in this probate proceeding should be granted.

A New York Will Lawyer said with respect to the issue of attorneys’ fees, 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 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 14, 2014

Court Hears Case Regarding Probate with Foreclosure Involved

by Stephen Bilkis

In an action transferred to the court from Supreme Court, Nassau County, one of several defendants, a Home Loan corporation, moves the court for an order dismissing the complaint against it. Plaintiffs opposed such motion and cross-move for summary judgment dismissing the answer, or, in the alternative, striking its 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 decedent, 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 he was the sole distributee and that the subject property vested in him immediately upon his sister’s death.

A New York Will Lawyer said the distribute brother then died testate in June 1994. Herein petitioner was appointed the voluntary administrator of the brother’s estate. The court’s file contains original will which devises and bequeaths all of his property to his cousin. The latter died in August 2000. There was no deed executed from the estate of the decedent sister to the brother, nor was there a deed from the estate of the brother to the petitioner. Although the brother’s original will was filed in the court by petitioner incident to the voluntary administration of the estate of the brother, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the petitioner, the administrators of his estate, and claim to be his only distributees.

Published on: March 9, 2014

Petitioner Claims Fiduciary is Unable to Serve

by Stephen Bilkis

A New York Probate Lawyer said the decedent died in January 2008 in Moscow, Russia, leaving a purported will which nominates the decedent’s attorney, and respondent, as executors. Preliminary letters testamentary issued to them by decree of this court in April 2008. The purported will bequeaths the decedent’s 75% interest in the Corporation to Petitioner, who allegedly owns the other 25% interest in the Corporation. The lawyer claims that he is the president of the Corporation and has been so since its formation in 2005. At the time of the decedent’s death, the Corporation owned real property and two automobiles. The purported will also include a $300,000.00 cash bequest to the respondent.

A New York Will Lawyer said that Petitioner is one of three women who were allegedly married to the decedent at the time of his death. She claims she married the decedent in December 2007, after his divorce from a former spouse became finalized in September 2007. The former spouse has filed suit in Russia attempting to invalidate the marriage between the petitioner and the decedent on the grounds that the divorce was invalid. The parties disagree over the status of the Russian proceeding. The preliminary executors contend that the Russian courts have determined that the divorce was not valid and that the determination is final. Both of them have filed a Notice of Right of Election in the probate proceeding.

Suffolk County Probate Lawyers said the petitioner has filed objections to the will, limited to the appointment of the fiduciaries. A guardian ad litem was appointed for the decedent’s child, who is eight years old. The child lives with the petitioner at the Peachtree Lane property. The guardian ad litem has filed his report wherein he has stated that he will not be filing objections to the purported will pursuant to a stipulation of settlement. Pursuant to the terms of that stipulation, the lawyer has agreed to assign to the son one-half of whatever she ultimately receives under the will. The court has authorized the guardian ad litem to sign the stipulation on behalf of his ward.

Published on: February 14, 2014

Court Rules on Accounting Proceeding

by Stephen Bilkis

A New York Probate Lawyer said this is an accounting proceeding in which the court is asked to determine whether assets of the estate located in New York should be distributed directly to legatees or whether they should be transmitted to the California administrator for distribution there. A New York Estate Lawyer said that, the deceased until three years prior to his death had been a New York resident. He had prepared a will here naming the Chase Manhattan Bank executor. He then moved to California, purchased real estate, established his residence and executed three codicils to the will. The codicils disposed of his California realty, enlarged the legacy of a niece, a California resident, dropped one of the named executors but retained the Chase Manhattan Bank. Most of the estate is here in New York.

A New York Estate Will Lawyer said that, after decedent’s death, the executor petitioned for the probate of the will and codicils in this jurisdiction. A contest ensued which was subsequently settled and the objections were withdrawn. Letters testamentary were then issued to the Chase Manhattan Bank. Shortly thereafter, the decedent’s niece, a legatee, applied to the Los Angeles Probate Court for letters of administration. That court granted letters to the Public Administrator of Los Angeles.

A Nassau Probate Lawyer said that, although the letters issued to the Chase Manhattan Bank were in form letters of original probate, it would appear that in reality the deceased being a resident of California the domiciliary administration is there and the administration here is therefore in its nature ancillary. The Public Administrator of Los Angeles as administrator c.t.a. has objected to the proposal of the executor to distribute the assets in its possession to the legatees directly rather than to remit them to the domiciliary representative in California for distribution by him.

Published on: January 2, 2014

Court Determines if Corporation is Sole Surviving Trustee of Estate

by Stephen Bilkis

A New York Estate Lawyer said that, the testator, while a resident of New York, executed a will in 1904 and a codicil thereto in 1911. He died a resident of Rhode Island in 1912 and the aforesaid instruments were admitted to probate as his will in that state. A New York Banking Corporation became successor trustee under the will in 1918 by appointment of the then surviving trustees.

A New York Probate Lawyer said that, an accounting was had in Rhode Island in 1948 and the accounts of the banking corporation and an individual trustee were settled by a decree made on February 7, 1949. The instant proceeding is brought by the corporation as sole surviving trustee for the settlement of its accounts for a period subsequent to June 21, 1948 and for construction of the will. Other issues have been raised by respondents but it has been stipulated that the construction question shall be disposed of as a preliminary issue.

A New York Will Lawyer said that, certain testamentary trusts have terminated and remainder interests therein are payable pursuant to a direction of the testator which he expressed in the following language: to the Rector, Church Wardens and Vestrymen of St. Thomas’ Church in the City of New York, for the purpose of erecting and maintaining, in such place as they may select, a building or buildings for the care of persons suffering from tuberculosis, to be called the Scott Memorial Home.’

Published on: December 21, 2012

Court Determines the Proximate Cause of Injuries

by Stephen Bilkis

In an action to recover damages for personal injuries, the plaintiffs allegedly sustained personal injuries when the limb of a tree fell onto the motor vehicle in which they were traveling, in the defendant Village of Great Neck Estates. Thereafter, a New York Probate Lawyer said that, the plaintiffs commenced this action, alleging, inter alia, that the accident and their resulting injuries were proximately caused by the negligence of the Defendant County of Nassau in failing, among other things, to remove a dead and/or diseased tree. A Nassau Estate Litigation Lawyer said that, the defendant County subsequently cross-moved for summary judgment dismissing the complaint insofar as asserted against it on the grounds that the plaintiffs had not complied with the prior written notice requirement set forth in section 12-4.0 (e) of the Administrative Code of Nassau County and that it lacked both actual and constructive notice of the purported hazard. A Nassau Estate Litigation Lawyer said that, the defendant County additionally sought to dismiss the complaint insofar as asserted by the plaintiff Lakeysha Agugbo on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Supreme Court properly denied the County’s cross motion and held that: In an action to recover damages for personal injuries, the defendant County of Nassau appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered February 21, 2007, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

Queens Probate Lawyers said the issue in this case is whether defendant is liable for damages, for the injuries sustained by the plaintiff on the ground that the resulting injuries were proximately caused by the negligence of the Defendant County in failing, among other things, to remove a dead and/or diseased tree.

The Court in deciding the case said that, Prior written notice statutes apply to “actual physical defects in the surface of a street, highway or bridge of a kind which do not immediately come to the attention of the town officers unless they are given actual notice thereof”. Accordingly, the Court held that, the prior written notice requirement invoked by the County does not apply to the facts of this case. Furthermore, the County failed to establish a prima facie case that it lacked actual and constructive notice of the alleged hazard in this case. Lastly, the Court held that, the plaintiff Lakeysha Agugbo was not required to establish that she sustained a serious injury in the subject accident as she did not allege any negligence on the part of the County in the use or operation of a motor vehicle. Instead, the allegations against the County related to premises liability. Therefore, the Court held that, the County does not qualify as a covered person within the meaning of Insurance Law § 5102 (j) and § 5104 (a).