Estate Administration

Published on: February 6, 2015

Court Hears Claim Brought by State Department of Mental Hygiene

by Stephen Bilkis

Probate Lawyers said that this issue is a frequently recurring problem in the Surrogate’s Courts, that of claims against estates or beneficiaries of estates by the State Department of Mental Hygiene.

Testator M died August 9, 1975 leaving his widow S as his sole distributee. His will executed in 1968 and admitted to probate provided a trust of one-half his net estate for S, remainder to two named cousins. (The cousins were also residuary legatees) As nominated executors, they have been issued letters. The gross estate is approximately $75,000.

A New York Estate Lawyer said that in 1968, shortly after the execution of the will, S was institutionalized and except for brief periods has continued as a patient in one of the institutions in the Department of Mental Hygiene (Department). A Committee has been appointed for her. The Committee is holding assets (apart from any beneficial interest in her husband’s estate) of over $100,000.

Published on: February 5, 2015

Court Decides if Widow Entitled to Maximum Exemption Regarding Estate Tax

by Stephen Bilkis

Probate Laywers said that sources revealed that the decedent died leaving a joint will entered into with his wife. Under the provisions of that will all property of the person first dying is bequeathed to the survivor; upon the death of the survivor ‘all of the property of which he or she shall be possessed, including such property as he or she shall have acquired under the terms of this Last Will and Testament, shall go’ to a daughter with a gift over if said daughter predeceases the survivor. The Tax Commission urges that the widow is not entitled to the maximum exemption because the taxable estate transferred to her is not ‘indefeasibly vested’ within the meaning of section 958(b)(1) of the Tax Law. It argues that the joint will is a contract binding upon the survivor, and that the widow, at most, has the equivalent of a life estate, the remainder of which passes to the daughter upon her death.

Although both parties base their contentions upon the provisions of the joint will, that instrument has not been offered for probate. Ordinarily a will is not presumed valid until probated, as before such approval there is nothing to be construed. However, SCPA 2002 provides that the surrogate’s court of every county having jurisdiction of the estate of a decedent under the provisions of the tax law relating to transfer or estate taxes shall have jurisdiction to hear and determine all questions arising thereunder, including specifically, but without limitation, jurisdiction to fully determine the amount of tax to be imposed. Aside from the ordinary jurisdiction of the surrogate, this is a special grant of power in broad and comprehensive language. There can be no good reason for hampering the power conferred by any construction that would take from the court the authority to decide every question that may arise in the tax proceeding which may be necessary in order to fully discharge the duties imposed by the law. As an incident to determining the estate tax, the court, in this instance, must necessarily interpret the terms of the joint will. Under such circumstances a construction of the will is proper despite the fact that the will has not yet been probated.

A New York Estate Lawyer said that furthermore, SCPA 209(4) provides, in part, that the court has power ‘to determine a decedent’s interest in any property claimed to constitute a part of his gross estate subject to estate tax and to determine the rights of any persons claiming an interest therein as between themselves, And to construe any instruments made by him affecting such property.’ One of the issues raised herein is whether the joint will is a contract binding upon the survivor. Though the contract, if one was created, is tantamount to a testamentary disposition, it need not comply with the statutory requirements for the execution of wills. The court is thus interpreting the validity of the document not as a will but as a contract, which is an instrument within the meaning of SCPA 209(4).

Published on: February 4, 2015

Court Determines the Validity of a Notice of Election

by Stephen Bilkis

Probate Lawyers show that the instant proceeding was commenced by the executors pursuant to section 145-a of the Surrogate’s Court Act to determine the validity and effect of the widow’s notice of election served and filed pursuant to section 18 of the Decedent Estate Law. However, after commencement of the proceeding, the widow withdrew said issue, and instead submitted for the Court’s determination on a basis of conceded facts the issue raised in her counterclaim for $10,000 with interest from date of decedent’s death. Widow, in her counterclaim alleges that she and decedent entered into a written agreement wherein inter alia decedent agreed to leave her a legacy of $10,000; that he failed to provide for her in his will which was admitted to probate; that the estate is sufficient for all purposes; that she duly performed all the terms, conditions and covenants on her part to be performed; that payment of said amount has been refused although duly demanded; and the widow therefore prays for an award in said amount. The other parties contend that said agreement between decedent and the said widow is unenforceable.

Under the agreement, the widow, under her maiden name renounced any and all right, title, interest in any property that decedent was then seized of or might thereafter acquire, as well as to the estate of decedent in the event that he predeceased her. Decedent on his part ‘promises and agrees to make a provision in his Last Will and Testament whereby the first party shall receive a bequest in the sum of $10,000.’ This is followed by the final paragraph stating: ‘The reason, purpose and object of this agreement is that the parties thereto intend to marry and become husband and wife, and each having children by a prior marriage, and each being desirous that their children shall inherit there respective property and estate, have entered into mutual or like agreements for the purpose of assuring each to the other, that they will not claim any interest in the estate of the one dying first, except as aforesaid.’

A New York Estate Lawyer said it would appear that the agreement contemplated a marriage in future which, though prohibited in this State by reason of the fact that decedent was widow’s uncle, could have been entered into validly in some other jurisdiction in which event the marriage would be entitled to recognition as valid in this State. The relationship of decedent and the widow was not meretricious. On March 23, 1945 decedent, a widower 72 years old, and the wife, a widow 57 years old, had obtained a marriage license in Brooklyn and entered into a religious marriage ceremony. They lived together for more than 15 years as husband and wife. Their marriage apparently was entered into in good faith. It was solemnized by a Rabbi who, in a statement, certified that he united the parties in marriage on March 23, 1945, and that the said widow was decedent’s legal wife. The agreement by decedent to provide a legacy for the widow being in writing satisfies the Statute of Frauds strongly relied upon by the other parties is not in point. It deals with an ante-nuptial contract which contemplated a marriage that would be invalid because of a living spouse, whereas in the instant case there was no impediment to the marriage in a jurisdiction where they could legally marry.

Published on: February 3, 2015

A Convicted Felon Files for Guardianship

by Stephen Bilkis

Probate Lawyers said that according to sources, a convicted felon who is unrelated to two subject children has filed for guardianship of these children who presently reside with him and his wife. The maternal uncle and adopted brother of the children has cross-petitioned for guardianship of the two subject children and opposed the petition of the said felon.

The court ruled that in a guardianship/custody dispute between two parents, the court is bound to make its determination based solely upon what is in the best interests of the children. The Court of Appeals firmly established a “totality of the circumstances” approach to all custody determinations, indicating that no one factor should be determinative in deciding what is in the best interests of the child. Even though this case does not involve two parents, the totality of the circumstances analysis is appropriate herein.

A New York Estate Lawyer said that under the totality of the circumstances rule no one factor is determinative in making an award of custody. Determining what is in the child’s best interest requires that consideration be given to many factors such as: the relative stability of respective parents, the wishes of a child, the effect of separation of siblings, the length of time the present custody arrangement has continued, the care and affection shown to the child by the parents, the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the atmosphere in the homes, the morality of the parents, the financial standing of the parents, the refusal of a parent to permit visitation and or the willingness of a parent to encourage visitation and the overall relative fitness of the parties. The existence or absence of any one factor cannot be determinative since the court must consider the totality of the circumstances. In the end, any determination of child custody must be based upon what is for the best interest of the child and what will best promote its welfare and happiness. Even in a guardianship proceeding, the same best interest test must apply for the benefit and welfare of these children. Neither party is a parent. Although the respondent is a blood relative, there is no prima facie preference for a blood relative over a person who is not related to the child.

Published on: February 2, 2015

Court Determines What Constitutes Reasonable Legal Compensation

by Stephen Bilkis

Probate Lawyers said in this probate proceeding in which the successor trustees of a living trust petitioned for the judicial settlement of their account. A Petition was filed by the attorney for the successor trustees, filed an Appeal, as limited by his brief, from so much of a decree of the Surrogate’s Court, Kings County, dated May 1, 2009, as, upon a decision of the same court dated November 7, 2008, fixing his attorney’s fee in the principal sum of only $28,698, directed him to refund the sum of $25,437 to the trust.

A Kings County Probate lawyer said that the Court made a ruling stating that the Surrogate “bears the ultimate responsibility to decide what constitutes reasonable legal compensation” in estate matters regardless of whether the parties agreed to the amount of legal fees. This was based on the leading case of Matter of Verplanck, 151 A.D.2d 767, 767, 543 N.Y.S.2d 138; and the case of Matter of Phelan, 173 A.D.2d 621, 570 N.Y.S.2d 202).

An Estate Lawyer said that here, the Surrogate’s Court providently exercised its discretion in fixing the appellant’s attorney’s fee in the principal sum of only $28,698, and directing him to return to the trust the sum of $25,437, representing an overpayment. The Surrogate properly considered the relevant factors, and its emphasis on the size of the trust estate was warranted under the circumstances

Published on: February 1, 2015

Petitioner Claims Co-Executor Failed to Account for Assets

by Stephen Bilkis

Probate Lawyers said records revealed that in a probate proceeding in which a co-executor of the estate of deceased, he petitioned to judicially settle the account of the estate, the objectant appeals from an order of the Surrogate’s Court, which granted the motion for summary judgment dismissing certain objections to the account, and denied as untimely his cross motion for summary judgment. The decedent, died survived by his three sons. Co-letters testamentary were issued to each of the decedent’s sons. More than six years later, the first son filed an account of the distribution of the assets of the estate, and both of his brothers filed objections to the account. By notice of motion, the first son moved for summary judgment dismissing three of the objections which his brothers had raised. The subject objections alleged that the first son failed to account for three estate assets: (1) the decedent’s alleged 17.986% interest in a partnership, which owns a large commercial property; (2) the proceeds from the satisfaction of a mortgage held by the decedent against the property; and (3) the proceeds from the sale of a property owned by the decedent. On or about July 18, 2008, the appellant served a cross motion, for summary judgment in his favor on numerous objections, and opposed the other’s motion. The Surrogate granted the motion for summary judgment, and denied the cross motion as untimely. The court now modify.

The court held that in an accounting proceeding, the party submitting an account has the ultimate burden of demonstrating that he or she has fully accounted for all of the assets of the estate. “While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete”.

A New York Estate Lawyer said on the contrary to the Surrogate’s determination, the first son failed to make a prima facie showing that the decedent did not own an interest in the partnership at the time of his death. In support of his position that the decedent owned no interest in the partnership, he submitted, the partnership agreement and the affidavit of one of the entity’s partners. However, the first son also submitted a list of his late mother’s assets which he had prepared for the attorney handling her estate, which indicated that his parents owned a 17.986% interest in the partnership. In addition, a federal estate tax return for the estate of the his mother, signed by the decedent, included among her assets a 17.986% interest in the property owned by the partnership. Although the first son offered an explanation for the inclusion of his parents’ interest in the partnership, in his list of his mother’s assets, and for the inclusion of an interest in the property in the estate tax return, under these circumstances, his submissions were insufficient to sustain his prima facie burden of demonstrating the absence of any triable issues of fact.

Published on: January 31, 2015

Court Hears Proceeding to Judicially Settle Decdent’s Final Account

by Stephen Bilkis

A Probate Lawyer said that incidental to this proceeding to judicially settle decedent’s final account, covering the period from December 1, 1984 to July 31, 1999, is a plea for construction of paragraphs Fifth and Sixth of his will. National Bank (petitioner), the successor executor and trustee under the will, maintains that construction is necessary before final distribution can be made. Petitioner, the stakeholder of testamentary trusts created under paragraphs Fifth and Sixth, takes no position with respect to the ultimate remaindermen of the trusts.

Mr. FC (hereafter decedent) died testate on January 18, 1944. His last will and testament of February 27, 1942 was admitted to probate by this court on February 10, 1944. Decedent was survived by a daughter, M, and a son, L, his distributees. Decedent’s wife predeceased him in 1942.

After directing the payment of debts and expenses and leaving personal effects, real property and the sum of $1,000 to M, decedent’s will directed that the residue be divided into three equal shares. From these shares, the will established two testamentary trusts: one funded with two thirds of the residuary estate (the article Fifth Trust) and one funded with the remaining one third of the residuary estate (the article Sixth Trust).

Published on: January 30, 2015

Court Decides Settles Plaintiff’s Final Accounting

by Stephen Bilkis

A Probate Lawyer said that incidental to this proceeding to judicially settle decedent’s final account, covering the period from December 1, 1984 to July 31, 1999, is a plea for construction of paragraphs Fifth and Sixth of his will. National Bank (petitioner), the successor executor and trustee under the will, maintains that construction is necessary before final distribution can be made. Petitioner, the stakeholder of testamentary trusts created under paragraphs Fifth and Sixth, takes no position with respect to the ultimate remaindermen of the trusts.

Mr. FC (hereafter decedent) died testate on January 18, 1944. His last will and testament of February 27, 1942 was admitted to probate by this court on February 10, 1944. Decedent was survived by a daughter, M, and a son, L, his distributees. Decedent’s wife predeceased him in 1942.

An Estate Lawyer said after directing the payment of debts and expenses and leaving personal effects, real property and the sum of $1,000 to M, decedent’s will directed that the residue be divided into three equal shares. From these shares, the will established two testamentary trusts: one funded with two thirds of the residuary estate (the article Fifth Trust) and one funded with the remaining one third of the residuary estate (the article Sixth Trust).

Published on: January 28, 2015

Petitioner Seeks to Probate Last Will and Testament

by Stephen Bilkis

A Probate Lawyer said that according to a Kings County Estate Attorney, in a contested proceeding to probate the last will and testament of J, also known as AJ, the objectants appeal, as limited by their brief, from so much of an order of the Surrogate’s Court, Kings Count, dated December 19, 2002, as, upon a decision of the same court, dated October 18, 2002, (a) granted those branches of the proponent’s motion which were for summary judgment dismissing the objections alleging lack of testamentary capacity, undue influence, and fraud, (b), in effect, denied that branch of their cross motion which was to compel disclosure, (c) failed to determine that branch of their cross motion which was to compel production of a handwriting exemplar of the testator, and (d), in effect, directed a separate proceeding to aid in the disposition of that branch of the cross motion of the objectant BJ which was to permit her to exercise her alleged right of election.

A Estate Lawyer said that the portion of the appeal which is from so much of the order as failed to determine that branch of the objectants’ cross motion which was to compel production of a handwriting exemplar of the testator must be dismissed, as it remains pending and undecided.

A Kings County Probate Attorney said, the appeal by the objectant BJ from so much of the order as, in effect, directed a separate proceeding to aid in the disposition of that branch of her cross motion which was to permit her to exercise her alleged right of election (see EPTL 5-1.1-A [c] [4]; SCPA 1421) must be dismissed. That portion of the order is not appealable as of right because it does not decide that branch of the cross motion and does not affect a substantial right (see CPLR 5701 [a] [2] [v]), and leave to appeal has not been granted. Any party aggrieved by a decree entered in the relevant proceeding may take an appeal therefrom.

Published on: January 27, 2015

Court Discusses Credit Shelter Trust

by Stephen Bilkis

A Probate Lawyer before the court is a petition brought by M, the surviving spouse of JM. M is the lifetime beneficiary of a credit shelter trust created under decedent’s last will and testament, and she and the trust share a tenancy in common in the residential real property in which petitioner resides. Petitioner asks that her (M) children, MS and JJ, as co-trustees of the trust, be compelled to distribute funds pursuant to the terms of the trust. Petitioner also asks that the court direct the trustees to pay petitioner’s claims for reimbursement of expenditures which she made in connection with the real property, and the cost of her home health companions.

Petitioner also seeks an order compelling the trustees to enter into a reverse mortgage on the real property. MS, in her capacity as co-trustee, has indicated her willingness to provide the relief requested in the petition, but has been unable to do so without the cooperation of her co-trustee, JJ. Petitioner asks the court to remove JJ as co-trustee if he continues to refuse to provide petitioner with the relief she is seeking, and to charge JJ with costs and legal fees incurred in connection with this proceeding.

An Estate Lawyer said JM died on September 2, 1991, leaving a last will and testament dated April 18, 1991. He was survived by his wife, M, and their five adult children, MS, JJ, MJ, JP and J. The will was admitted to probate and letters were issued to M as executor on November 19, 1991. On May 12, 1992, letters issued to MS and JJ as co-trustees of the credit shelter trust created under Article Second of decedent’s will.