Estate Administration

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: August 21, 2014

Petitioner Brings Motion Regarding Suspension of Hearing Under SCPA 1404

by Stephen Bilkis

This is a probate matter which comes on by motion of petitioner following the suspension of a hearing pursuant to SCPA 1404 held at the law office of respondent’s attorney by agreement of the parties.

A New York Probate Lawyers said that Petitioner requests three substantive orders related to the examination of witnesses before resuming the hearing: (1) to continue the hearing at the County Courthouse under the supervision of the Surrogate or other designee; (2) permission to question witnesses regarding events prior to the three-year period before the date the propounded instrument was executed; (3) that the witness and the attorney who drafted the decedent’s last three wills, fully produce all of his files relating to the three wills, the last of which is the propounded will, including files dated prior to the three-year period from the date the propounded instrument was executed.

Petitioner alleges that the decedent, who died on August 31, 2003, had made three wills, all with different or differing provisions as to the disbursement of his estate.

Published on: August 20, 2014

Court Decides Case Regarding Letters Testamentary

by Stephen Bilkis

This is a probate proceeding in which objections have been filed to the granting of letters testamentary to an attorney who is the executor named in the decedent’s will.

A New York Probate Lawyer said that Decedent died in July 1970, leaving a will which gave her entire estate to her husband and named the proponent as executor. The husband having predeceased the testatrix, the propounded paper will have no effect as a testamentary instrument to dispose of decedent’s estate and accordingly, her property which consists primarily of a two-family house will pass as in intestacy. The distributees of the testatrix are two brothers and a sister who are residents of Italy and a nephew and niece residing in New York who are children of a predeceased sister.

It is alleged that a day or two after the death of the decedent, the executor named in decedent’s will received from decedent’s step-son who had been residing with decedent, papers and documents relative to the affairs of the decedent including the deed to premises, and a paper writing purported to be decedent’s last will and testament. After a passage of time in which efforts were made by the nephew and niece to ascertain without success whether there was in fact a will, the nephew and niece filed a petition in this court for letters of administration. Thereafter, letters of administration were granted to the nephew and niece.

Published on: July 23, 2014

The Issue in this Case is Whether Attorneys Fees Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent’s real property.

A New York Will Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent’s estate. In addition, the court must release the administrator from the surety bond.

Westchester County Probate Lawyers said the issue in this case is whether the attorney’s fee should be granted by the court.

Published on: July 10, 2014

Court Decides a Case Regarding Kinship Issues

by Stephen Bilkis

A New York Probate Lawyer said this is a case of accounting of the Public Administrator, where the issue of kinship was referred to a court attorney/referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence, and the arguments made by the attorneys for the claimants and the guardian ad litem representing the interests of unknown distributees.

A New York Will Lawyer said that the decedent died intestate, a resident of Nassau County, in May 2006. Letters of administration issued to the Public Administrator in January 2007. The account filed by the Public Administrator shows the receipt of $354,397.29 of estate assets. There are three alleged maternal cousins of the decedent and seven alleged paternal first cousins of the decedent.

Long Island Probate Lawyers said that in order to establish their rights as distributees, claimants in a kinship proceeding must prove: (1) their relationship to the decedent; (2) the absence of any person with a closer degree of consanguinity to the decedent; and (3) the number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take. Claimants who allege to be distributees of the decedent have the burden of proof on each of these elements. The quantum of proof required to prove kinship is a fair preponderance of the credible evidence.

Published on: July 9, 2014

Court Determines Legal Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent’s real property.

A Nassau Estate Litigation Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent’s estate. In addition, the court must release the administrator from the surety bond.

The issue in this case is whether the attorney’s fee should be granted by the court.

Published on: June 22, 2014

Heirs Bring Action Because they were Left Out of Mother’s Will

by Stephen Bilkis

A New York Probate Lawyer said a 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.

A New York Will Lawyer said 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. 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.

Manhattan Probate Lawyers said the Executor did not concede to the validity of the July 11, 2000 will, and estate litigation commenced. The Objectants’ counsel secured affidavits from the draftsman of the later will, the attorney who oversaw its later destruction, and witnesses to the will’s execution and destruction. These parties were then deposed by the Executor’s counsel to ascertain if the decedent was mentally competent, under undue influence, duress, or if her actions were the product of fraud. No evidence of a lack of testamentary capacity was adduced at the five depositions conducted by the Executor’s counsel. However, the Executor continued to challenge the validity of the later will and claim that the decedent lacked testamentary capacity at its execution, causing a subpoena duces tecum to be issued seeking the decedent’s medical records.

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 20, 2014

Court Decides if Former Counsel is Entitled to Legal Fees

by Stephen Bilkis

A New York Probate Lawyer said that, in this estate, there are two separate proceedings to fix legal fees. In the first, the executor, the decedent’s nephew, petitions to fix and determine the reasonable legal fee and disbursements to be awarded to his former counsel, at an amount less than the $14,200 in legal fees and $1,415.37 in disbursements billed and sought by the said counsel. The counsel cross petition for an order fixing his fees and disbursements in the billed amount. The second proceeding pursuant to SCPA 2110, commenced by him, seeks an award of $9,590, including $340 in disbursements, for legal services rendered to a former client, the decedent’s daughter-in-law. The latter opposes the petition and cross-petitions to fix and determine his reasonable attorney’s fees and disbursements contending, inter alia, that the legal fees, to the extent valid, should be borne by the estate. The parties agreed to submit the issues in each proceeding on the papers, without a hearing.

A New York Will Lawyer said that, the decedent died on August 4, 2006. Letters testamentary issued on October 30, 2006. The decedent’s daughter-in-law and the decedent’s two grandchildren, the decedent’s only distributees, each receive one-third of the residuary estate. The share of each grandchild is to be held in trust until that grandchild reaches the age of 30 years. Although the counsel’s representation of the executor in connection with this estate commenced on or about August 11, 2006 upon the filing of the petition for letters testamentary, the executor did not execute a retainer agreement, setting an hourly rate of $250, until January 14, 2007. The probate petition indicated that the estate consisted of personal property valued at $137,000 and certain Bronx realty valued at $500,000. Thereafter, the executor filed an affidavit increasing the value of the personal property to $154,360.56 and the realty to $569,000.

A Bronx Estate Administration Lawyer said that, the counsel’s legal bills reveal that as of the date of the filing of the probate petition, he was in possession of a deed of the Bronx realty which was executed by the decedent on May 21, 2000, over six years prior to her death. The deed conveyed the realty to the decedent’s daughter-in-law while reserving to the decedent a life estate. Upon learning of the decedent’s death, the attorney who prepared and oversaw the execution of the deed provided it to him, who included the value of the realty in the probate petition. Following the admission of the will to probate, the executor and the counsel began collecting assets; in particular, they sought a date of death appraisal of the Bronx realty and personal property contained therein, and contacted brokers in order to sell the realty. The counsel’s bill reflects his involvement in meetings at the Bronx realty with the executor and appraisers, in obtaining brokers and receiving proposals from interested buyers and in drafting contracts of sale, although no closing ever occurred. During this time, it appears that disputes arose between the executor and the decedent’s daughter-in-law or her children concerning the sale of certain personal property, and the sales price of the Bronx realty. In addition, when the decedent’s granddaughter reached the age of 30, she requested through her mother a $10,000 distribution and, in response, the executor sent $6,000 instead of the $10,000 requested. These events prompted a January 3, 2008 letter from the counsel to the executor stating, inter alia, that he concurred with her recent rejection of an offer on the Bronx realty, and the executor should issue a check in the requested amount to the granddaughter and provide him and her with an accounting and cancelled checks for all expenses.

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.