Estate Administration

Published on: October 25, 2014

petitioners Move to Withdraw Petition for Probate

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding where petitioners move to withdraw their petition to probate a copy of a testamentary instrument as a lost will pursuant to SCPA 1407and have letters of administration issue instead.

The pertinent facts are as follows:

A New York Estate Lawyer said on 26 October 2000, J, the decedent died. He left a will apparently executed on 23 March 1995. Under the instrument, the decedent left her estate to her two sisters, JB and AB, or the survivor. She named JB as executor and AB as successor. JB predeceased the decedent without issue. As a result, the entire estate passed to AB.

Published on: October 24, 2014

Decedent’s Granddaughter Alleges Failure of Due Execution, Fraud

by Stephen Bilkis

New York Probate Lawyer said that on 20 March 2012, the decedent at the age of 107 years old died and left a will dated 1 August 1991. She was survived by three distributees, her daughter and the nominated executrix, OJ, and two grandchildren, AC and CC, children of decedent’s predeceased son, AKC.

A New York Estate Lawyer said that under the propounded instrument, after several pre-residuary cash bequests, the decedent left her real property to her daughter, and if her daughter predeceased her, to her son, the sole residuary beneficiary. On 30 September 1997, the first codicil to the propounded instrument was executed which added a few small pre-residuary cash bequests. On 3 September 1999, the second codicil was executed which again left the decedent’s real property to her daughter but in the event that her daughter predeceased her, such property was to be divided equally among her daughter’s three children subject to a life estate in decedent’s son-in-law, KJ.

Westchester County Probate Lawyers said that consequently, after the decedent’s death, the nominated fiduciary filed the probate petition.

Published on: October 22, 2014

Court Decides Motion to Vacate Will

by Stephen Bilkis

A New York Probate Lawyer 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: October 14, 2014

Summary Judgment Motion Filed Based on Testamentary Capacity

by Stephen Bilkis

A New York Probate Lawyer said in this Will Contest proceeding, the decedent died in May 2006, survived by his wife and their two children, the proponent and the objectant. The wife suffers from Alzheimer’s disease. Her cousin and an attorney, were appointed her guardians pursuant to Article 81 of the Mental Hygiene Law and they have appeared for her in this proceeding. They filed a notice of election on her behalf.

A New York Estate Lawyer said that the proponent filed the petition for probate in June 2006 and jurisdiction was obtained over all necessary parties in August 2006. The propounded will leaves nothing to objectant, allegedly because the decedent believed that she had converted assets worth $3 million from him and from the wife by use of a power of attorney they had given her. In fact, he pressed criminal charges against her which resulted in her plea of guilty to a Class A misdemeanor. The objectant filed objections to probate; however, she never appeared for her deposition in this proceeding, nor did she ever produce any documents demanded by petitioner. Her initial reason for seeking to delay her deposition was that doing so would violate her Fifth Amendment right against self-incrimination. However, she never appeared for deposition even after the conclusion of the criminal matter when she no longer had a claim of constitutional privilege. She then averred that she was suffering from a psychological condition which prevented her from being deposed. Being unconvinced of that contention, the court, by decision and order, granted the summary judgment motion to the extent that objectant’s objections of fraud and undue influence, upon which the objectant bears the burden of proof, were dismissed.

Regarding petitioner’s motion for summary judgment, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment in contested probate proceedings is appropriate where a contestant fails to raise any issues of fact regarding execution of the Will, testamentary capacity, undue influence or fraud.

Published on: October 13, 2014

Respondent Allegedly Fails to Comply with Document Production Request

by Stephen Bilkis

A New York Probate Lawyer said one of the decedent’s sons, the objectant in a probate proceeding and the petitioner in an administration proceeding that was consolidated with the probate proceeding, has now noticed for settlement a decree dismissing the probate petition. He has also moved to have his application for letters of administration restored to the calendar. The decedent’s daughter, the proponent in the probate petition, opposes her brother’s applications and, in effect, seeks to vacate her prior default in her brother’s motion to dismiss her probate petition.

A New York Estate Lawyer said that the decedent died in June 2000 survived by three children. The probate petition was filed in October 2001. The propounded instrument provides for an equal distribution of the estate between the two children other than the objectant. It appears from allegations made in the pending applications that the decedent’s other son, the beneficiary of 50% of the estate under the propounded instrument, died in April 2006 and that he was not married and did not have any children.

Suffolk County Probate Lawyers said the objectant made several applications in the probate proceeding for relief based upon the proponent’s failure to provide requested discovery. The court’s last determination on this issue directed the production of certain documents by the proponent by August 2005. After the August deadline passed without production of the additional documents, the objectant moved to dismiss the probate petition and the proponent’s counsel moved to withdraw from representing her, alleging that she had failed to keep appointments necessary to comply with the court’s directions.

Published on: October 13, 2014

Court Determines Apportionment of Legal Fees in Estate Administration Case

by Stephen Bilkis

A New York Probate Lawyer said the woman died survived by one sister and thirteen descendants of pre-deceased siblings. The deceased woman’s nephew, the Executor filed a Verified Petition to Probate a Last Will and Testament, dated April 17, 1996 in which he was the nominated Executor and in which he and his two siblings were named as the sole residuary beneficiaries. The Executor was granted Preliminary Letters Testamentary on October 29, 2009. Included in his Petition for Probate was an assertion by the decedent’s Executor that, after a diligent search and inquiry there exists no will, codicil or other testamentary instrument of the decedent later in date. The Petition also listed only the decedent’s one surviving sibling, and the Petitioner and his two sisters, omitting ten of the decedent’s distributees, all cousins of the Executor.

The decedent’s one surviving sister and the ten distributees left out of the Petition for Probate, six nieces and nephews and four great-nieces and nephews of the decedent (Objectants), jointly retained their counsel and conducted an investigation that ultimately determined that the April 17, 1996 will probated by the Executor was not the decedent’s Last Will and Testament.

A New York Estate Lawyer said the evidence was adduced that the decedent had executed a Last Will and Testament on July 11, 2000 and subsequently intentionally destroyed it. As the July 11, 2000 will revoked all prior wills of the decedent, its destruction would, in the absence of a subsequent will, result in the decedent’s property passing pursuant to the laws of intestacy and the Executor not being named as executor. Accordingly, on December 1, 2009, the Objectants filed a Verified Answer to the Executor’s Petition for Probate and Objections to the Probate of the April 17, 1996 Will.

Published on: October 12, 2014

Second Wife Opposes Preliminary Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said a man died leaving a purported will dated March 20, 2009. He was survived by his wife from a second marriage and by five children, one of whom is under a disability. A guardian ad litem was appointed for the disabled child. The purported will provides that one-third (1/3) of the residuary estate is to be placed in a supplemental needs trust for the decedent’s wife. The remainder of the residuary estate is divided into seven equal shares with one share for each of the decedent’s children (other than the disabled child) and the decedent’s three step-children. The purported will nominates the decedent’s daughter and her husband, as executors. The purported will has been offered for probate by the nominated executors. A waiver and consent was signed by the wife from the second marriage on May 12, 2009 and filed on June 16, 2009.

The petitioners have filed an application for preliminary letters testamentary. The petition is opposed by the second wife. She has also moved to revoke her waiver and consent. She has filed an affidavit in support of the motions. According to her, she and the decedent were married in 1977. Each had been married previously, their former spouses having passed away. She had three children from her first marriage, and the decedent had five children from his first marriage. At the time of the marriage, she owned a residence in Sea Cliff, New York. Prior to the marriage, the decedent sold his residence and moved in with her.

A New York Estate Lawyer said the second wife claims that it was always their intention that upon her death, her residence would be given to her children reserving the right for decedent to reside there. In 2007, at the urging of the decedent’s daughter and son-in-law, the decedent and the second wife consulted with an attorney at which time she expressed her desire that the residence pass to her children. The attorney prepared a will for each of them and an Irrevocable Trust. The second wife claims she did not understand the intricacies of the trust agreement but was advised and assured that upon her death her children would get her residence.

Published on: October 11, 2014

Sons Battle for Right to Serve as Sole Preliminary Executor

by Stephen Bilkis

A New York Probate Lawyer said in this probate proceeding, the decedent’s eldest son petitions for his appointment as the sole preliminary executor. The decedent’s youngest son opposes that application and cross-petitions for his appointment as the sole preliminary executor. The decedent’s only other distributee, her middle son, who is disinherited under the propounded instrument, supports his eldest brother’s application.

It appears from papers filed in this proceeding that the battle between the decedent’s sons commenced prior to her death. In a petition verified in March of 2010, the eldest and youngest son sought to be appointed as the guardians of the decedent’s person and property pursuant to Mental Hygiene Law. At that time, the decedent was living in her Bronx home with her youngest son who was handling her affairs pursuant to a power of attorney. Due to the decedent’s death on October 26, 2010, the guardianship proceeding was terminated without the appointment of a guardian.

A New York Estate Lawyer said that after the decedent’s death, the will was not produced until the eldest son commenced a proceeding against the youngest son to produce the will and the court entered an order on December 29, 2010 directing its production. Thereafter the eldest and the youngest son filed separate probate petitions, each of them seeking the issuance of letters testamentary solely to himself. In a brief period of harmony, the two brothers stipulated that preliminary letters testamentary would issue jointly to them for a period of 90 days. During that 90-day period, it appears that the two brothers failed to do anything with regard to either the probate proceeding or administering the five parcels of realty owned by the decedent which appear to be the primary assets of her estate. After the preliminary letters expired, the instant applications were presented to the court and the brothers continued trading accusations.

Published on: October 10, 2014

court Decides if Opposition to Will Should be Barred due to Six Year Statute of Limitations

by Stephen Bilkis

A New York Probate Lawyer said that, this is a proceeding to vacate a decree of probate and to allow the petitioners to withdraw the waivers of process, consents to probate they executed on May 17, 1999. The petitioners are the decedent’s four adult children, the executor of the estate, opposes the requested relief. Respondent is the decedent’s surviving spouse; he and the decedent were married in November 1991. The husband is not the father of the petitioners.

A Bronx Estate Litigation Lawyer said that, on February 20, 2008, the court issued a decision and order wherein the court granted the petitioners’ counsel’s unopposed motion to withdraw as the petitioners’ counsel and stayed the proceedings for 30 days after a copy of the order was served by overnight delivery on the petitioners. A copy of the order was served as directed, and the period of the stay has expired. The petition to vacate the decree granting probate and for other relief has now been submitted for decision.

A New York Estate Lawyer said that, the decedent died on December 5, 1998 at the age of 57. Her last will and testament dated March 11, 1995 was admitted to probate by decree dated July 29, 1999, and letters testamentary were issued to the husband. The affidavit of subscribing witnesses annexed to the will states that the will was executed under the supervision of an attorney. The decedent left her entire estate to her husband. In the event that the husband had predeceased the decedent, the decedent bequeathed the estate to the petitioners, per stirpes.

Published on: October 9, 2014

Court Determines Juridiction over Real Property in Estate

by Stephen Bilkis

A New York Probate Lawyer said this action stems from plaintiff’s attempt to purchase certain real property, located at Bronx County (“subject property”), in August 2005, from four members of a family.

One of the members, a lady, died testate in February 1986. Under the terms of her Will, her husband had a life interest in certain properties, but not the subject property, only access to its garage. Article Sixth of the Last Will and Testament provided that their son had a life income interest in the subject property which was to be held in Trust by Trustees. The son’s daughters were allowed to occupy the first floor and second floor, respectively, and, upon the son’s death, the subject property was to be transferred jointly to the daughters, decedent’s granddaughters. The Will also provided that, upon the husband’s death, the son would substitute as Co-Executor and Co-Trustee in his place. The other Co-Executor and Co-Trustee attorney was never a party to the sale of the subject property. Further, the husband and the lawyer never obtained Letters of Co-Trusteeship for the Article Sixth Trust, and only the husband took action as an unauthorized Trustee with regards to the subject property.

A New York Estate Lawyer said that Probate Petition and Notice of Probate were filed with the Surrogate’s Court in April 1988, naming the husband and the lawyer as Co-Executors and Co-Trustees. It also requested that Letters of Testamentary be issued to them and that Letters of Trusteeship be issued to them under the Article Third and to the lawyer under the Article Eleventh. Thereafter, the Surrogate’s Court issued Letters of Co-Testamentary and Co-Trusteeship to the Petitioners. However, the Letters of Trusteeship were limited to Articles Third and Eleventh Trusts. The Surrogate’s Court provided a letter to the GAL stating that no application for Letters of Trusteeship was issued under Article Sixth of the Will.