Estate Administration

Published on: November 22, 2014

coexecutors Deemed Unfit in Probate Proceeding

by Stephen Bilkis

A New York Probate Lawyer said in this Probate action, an Order and decree (one paper), Surrogate’s Court, New York County, entered on or about May 22, 1995, which removed the preliminary coexecutors, and appointed as temporary administrators, affirmed, without costs.

A Kings County Probate attorney said that the Surrogate’s removal of the preliminary coexecutors pursuant to SCPA 711 and 719 was a proper exercise of discretion, and no evidentiary hearing was required under the particular circumstances. While the Surrogate’s characterization of the facts as “undisputed” may not have been technically accurate, the unfitness of the coexecutors was established by a combination of documentary proof and the coexecutors’ own concessions, and the totality of written submissions failed to raise any triable issue of fact.

The unfitness of the coexecutors to take responsibility for this $1.2 billion estate, bequeathed primarily to charity, was manifest. While “courts will not undertake to make a better will nor name a better executor for the testator”, the standard of behavior of a fiduciary is “[n]ot honesty alone, but the punctilio of an honor the most sensitive”.

Published on: November 21, 2014

petitioner Claims Statute of Limitation Defense is not Valid

by Stephen Bilkis

A New York Probate Lawyer said the decedent died on May 1, 2004, leaving a will which was admitted to probate on July 7, 2004. The decedent was survived by his four children. The will makes pre-residuary cash bequests of $45,000.00 to each of ghem. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to his son.

A New York Estate Lawyer said that the son originally filed a First and Final Accounting of his proceedings covering the period May 1, 2004 through January 31, 2008. Thereafter, he filed a document entitled “First Interim Account of the Estate.” This document covers the period from May 1, 2004 to January 31, 2008, the same period covered by the First and Final Accounting.

Another son opposed the probate. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent make a loan to him. In addition, the parties acknowledged that the petitioner took an advance payment of commissions in the amount of $10,0000.00, without prior court order and repaid the sum of $10,000.00 to the estate.

Published on: November 20, 2014

Court Hears Proceeding to Settle an Intermediate Account

by Stephen Bilkis

A New York Probate Lawyer said in this proceeding to settle an intermediate account of a bank as trustee of two trusts, the appeals are from two decrees of the Surrogate’s Court, Kings County, entered October 27, 1972 and July 30, 1973, respectively. The trustee appeals from so much of the first decree as (1) adjudged that the trustee was guilty of gross neglect with respect to one of the trusts, the one established for the benefit of the testator’s two daughters, in failing to make the trust productive; (2) surcharged the trustee $23,298.27; (3) adjudged that a certain 1946 consent and release (referred to in the decree as made in ‘1947’) executed by the daughters was ineffective to bind them with respect to the conduct of the trustee subsequent to the date thereof; and (4) adjudged that the In terrorem clause in a certain probate compromise agreement of 1926 had no legal force and effect upon the daughters, who in 1926 were infants.

A Kings County Estate attorney said that the trustee, a remainderman and the executor of the estate of another remainderman appeal from so much of the second decree as (1) authorized and directed the trustee to invade the principal of the daughters’ trust by transferring it equally to the daughters and (2) terminated that trust. The trustee also appeals from the further portion of this decree which ‘confirms’ the $23,298.07 surcharge; said remainderman and executor of a remainderman’s estate also appeal from so much of this decree as failed to deny the relief requested in a petition by one of the daughters, and the daughters cross-appealed from another portion of this decree.

A New York Estate Lawyer said the appeals by the daughters dismissed, without costs. The daughters have abandoned their appeals, their briefs asking only for affirmance of both decrees.

Published on: November 19, 2014

Court Decides Outcome in Will Contest Proceeding

by Stephen Bilkis

Page 727

145 N.Y.S.2d 727

1 Misc.2d 440

Published on: November 18, 2014

Court Settles Who is “Next of Kin” in Probate Proceeding

by Stephen Bilkis

Decedent died in 1949 leaving a will which he had executed in 1919, some 30 years before his death which was duly admitted to probate.

A New York Probate Lawyer said in Article THIRD, the will created a trust for the life income benefit of testator’s wife. Upon her death, the principal was to be paid to son and if he should predecease to his issue. In fact the son predeceased the testator himself as well as his mother the income beneficiary without issue. It that contingency, the will directed the Trustee to pay over, transfer and deliver the principal of the trust fund to and among my next of kin in equal shares but Per stirpes and not Per capita.

A New York Estate lawyer said that the direction is clearly to distribute the principal among Testator’s next of kin. The issue is as of what date are the next of kin to be determined (1) 1919 the date of execution of the will; (2) 1949 the date of testator’s death or (3) 1975 the date of death of the income beneficiary, testator’s wife?

Published on: November 17, 2014

court Decides Who Should Receive Life Insurance Proceeds with Reciprocal Will Issue

by Stephen Bilkis

A New York Probate Lawyer said that decedents were husband and wife, presumably died simultaneously in a fire in their home on December 13, 1959. Decedents left reciprocal wills which were duly admitted to probate in Wayne County on January 15, 1960. On that day Letters Testamentary on their wills, both late of the Town of Lyons, New York, were issued to the executor of the City of Detroit, Wayne County, Michigan.

The executor petitions for the Judicial Settlement of his first intermediate account in the two estates. In such petitions he asks that this Court determine to whom the $16,813.20 insurance settlement, received on account of the fire loss to the real estate of the decedents at New York, should be paid.

A New York Estate Lawyer said the question before the Court is whether the sum of $16,813.20, which represents the insurance settlement because of the fire loss to the real property should be distributed as part of the residuary estates of the decedents or whether the said sum should be paid to specific devisee of this real property, the Church.

Published on: November 14, 2014

Petitioners Request Settlement of Their Account as Surviving Trustees

by Stephen Bilkis

New York Probate Lawyers said this is a proceeding by the petitioners, and a Bank, for the judicial settlement of their account as surviving trustees of an express trust created by the father in a letter writing dated March 10, 1902, and for the construction of the trust instrument in conjunction with the will of the testator for whose immediate benefit the trust was created.

A Kings County Estate lawyer said that in March, 1902 testator had four sons. On March 10th of that year he established the instant trust in a letter addressed to Joel and a few days later delivered the securities constituting the corpus of the trust to his 2 sons, as trustees.

The settlor augmented the corpus of the trust pursuant to instruments executed in 1905, 1907, 1909, 1910 and 1911. On December 24, 1909 the 2 sons as trustees, properly designated their brother (now a co-petitioner) as a co-trustee.

Published on: November 13, 2014

Validity of Italian Wedding in Question in Estate Administration Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that the petition in this probate proceeding describes the respondent, as decedent’s ‘alleged widow’. The latter claims that she married decedent by proxy in a civil ceremony performed in San Mauro La Bruca, Province of Salerno, Republic of Italy, on October 26, 1950, in accordance with the laws of that Republic. Decedent’s five children of a prior marriage question the performance and validity of such marriage.

A New York Estate Lawyer said that a preliminary hearing was ordered on the issues so raised and proof was taken thereon. Nine documents were admitted in evidence without objection in support of the widow’s claim. Exhibit 1, in English, is an application by decedent for the issuance of an immigration visa for the widow’s entry into this country. Exhibits 2 to 9, inclusive, are certified copies of records of the Bureau of Vital Statistics of San Mauro La Bruca aforementioned, which were required by the Civil Code of Italy for the performance of the proxy marriage in question. These documents are in Italian, translated into English and properly authenticated.

Thereafter, decedent executed a power of attorney before a notary public in Brooklyn, N. Y., by which he constituted and appointed his nephew, domiciled and residing in San Mauro (decedent’s native town), ‘to represent him in the celebration of a civil marriage in the Town of San Mauro La Bruca, Province of Salerno, Republic of Italy, between himself and the daughter of the decedent domiciled and residing in San Mauro’. Decedent also executed a petition to the Attorney General of the Court of Appeals of Naples, Italy, seeking permission to marry the said woman in San Mauro by power of attorney granted for that purpose as required by Article III of the Civil Code of Italy, which was granted by the Attorney General pursuant thereto on September 21, 1950.

Published on: October 27, 2014

Objectant Seeks Order Dismissing Probate Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that, in this contested probate proceeding, petitioner seeks a declaration that the proceeding was commenced on December 8, 2005, before the commencement of a probate proceeding in Arizona. Objectant seeks an order dismissing the probate proceeding on the grounds that this court lacks subject matter jurisdiction (CPLR 3211 [a] [2]) and that there is a prior proceeding pending in Arizona (CPLR 3211 [a] [4]).

A New York Estate Lawyer said that, the decedent died on December 4, 2005, survived by two grandchildren. The decedent was born and raised in Brooklyn. For many years, the decedent and his wife lived in Florida, where his granddaughter lived. At some point, he and his wife moved to Phoenix, Arizona, where his grandson lived. They were living in Phoenix when the decedent’s wife died. The decedent remained in Phoenix until moving to New York in late September 2005. While living in Phoenix, the decedent executed a will, dated April 2, 2004, which left his estate to the trustee revocable trust. On the same day, he executed a trust agreement creating a revocable inter vivos trust. Under the terms of the trust, the estate passes to one of the grand children upon the decedent’s death.

A Brooklyn Probate Lawyer said that, in 2005, the decedent called his sister, and told her he wanted to return to Brooklyn to live with her. she and her daughter visited the decedent on September 27, 2005. At that time, the decedent was 95 years old and suffering from cardiac problems. He asked his sister to take him back to Brooklyn to live with her. According to the said sister, the decedent told her that he wanted to change his will, revocable trust and health care proxy before boarding the plane. On September 30, 2005, the day they were to travel to New York, he visited the offices of the law firm in Arizona and asked her to change the beneficiaries of the 2004 will and trust. The decedent executed a new will, an amendment of the 2004 trust and a health care proxy in the office. The 2004 trust was amended to provide that, upon the decedent’s death, his sister receives one half of the trust principal, his granddaughter receives three eighths of the trust principal and his grandson receives one eighth. The decedent then left immediately for the airport, without stopping to get his glasses, clothes or medicine. They traveled back to New York that day, September 30, 2005.

Published on: October 26, 2014

Court Rules on Holdover Proceeding

by Stephen Bilkis

A New York Probate Lawyer said this is a probate proceeding where the decedent’s son, who is the sole distributee and the sole income beneficiary of a testamentary trust consisting of the entire residuary estate, seeks to revoke his waiver and consent to probate so that he may conduct SCPA 1404 examinations and file objections to probate, if appropriate; and, seeks for an order directing the preliminary executors to discontinue a pending landlord/tenant holdover proceeding they commenced against him in connection with his occupancy of a portion of real property that appears to be the sole asset available to fund the trust. The movant’s four sons, two of whom are infants for whom a guardian ad litem was appointed, are the contingent remaindermen of the trust.

The relevant facts are the following:

A New York Estate Lawyer offered for probate is the will dated 30 January 2000 along with a codicil dated 20 July 2009. The codicil amended the will to include a newborn grandson. Both the will and codicil were drafted by an attorney and their execution was attorney-supervised; both were witnessed by three witnesses who also executed self-proving affidavits; it leaves all tangible personal property to the son; in paragraph FOURTH (A) and (C), the entire residuary estate is placed in trust, with all net income, payable to the son quarter-annually or at more frequent intervals if necessary during his lifetime, with the remainder divided equally among the decedent’s grandchildren; and, in paragraph FOURTH (B), the “sole and absolute discretion” is vested in the trustees to invade the corpus of the trust in such amounts and at such times as they shall deem appropriate and necessary for the health, welfare, support and maintenance of the son, and directs that such invasion “shall” be made “without considering the effect such invasion may have upon any third persons, including the remaindermen.”