Estate Administration

Published on: April 10, 2014

Respondent Contends Court Lacks Subject Matter Jurisdiction

by Stephen Bilkis

In this Will Contest case, a motion by the executor for an order consenting to a transfer to this court of an action currently is pending in Supreme Court, New York County. Respondent argues that this court lacks subject matter jurisdiction of the dispute and that Nassau County is not the proper venue for the case.

A New York Probate Lawyer said that the decedent died in December 1993. The court admitted his Last Will and Testament to probate and issued letters testamentary to petitioner thereafter. Petitioner subsequently filed an accounting and a supplemental accounting, respectively, with this court. At the closing date of the latter, the estate held interests in real estate partnerships, all controlled by general partner. At a special meeting of the shareholders, decedent issued sixty shares of stock each to petitioner and respondent, with petitioner holding her shares in trust for respondent, and with respondent holding his stocks in trust for decedent, an arrangement referred to as a “tontine” trust. Evidenced in the meeting’s minutes is “the intention that the sole possession and ownership of the stock remain within the three parties and that the survivor of the three have sole possession of all the outstanding and issued stock of the corporation.” Also, new stock certificates would be issued when one of the parties died, and these would be evenly split and distributed to the remaining parties, with each holding his share in trust for the other. Petitioner disputes the existence of this arrangement, and respondent’s pending Supreme Court case pertains to petitioner’s actions as executrix relating to decedent’s sixty shares.

A New York Will Lawyer said the Surrogate Court’s subject matter jurisdiction has steadily expanded throughout the twentieth century. The Court of Appeals held in a case involving two living parties (one being a fiduciary of a decedent’s estate) and an eviction proceeding, that, “for the Surrogate’s Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate”.

Published on: April 9, 2014

Disinherited Daughter Challenges Will

by Stephen Bilkis

The decedent died leaving a will. The will nominates 2 s executors but one of them renounced his appointment. The decedent was survived by his two adult children.

A New York Probate Lawyer said that the will provides that the decedent’s entire residuary estate shall be distributed to decedent’s companion. The will specifically disinherits the decedent’s children. The executor has petitioned for preliminary letters testamentary.

By order to show cause, the decedent’s daughter seeks an order (i) denying the issuance of preliminary letters testamentary to the executor; (ii) disqualifying him from serving as executor of the estate; (iii) removing him as the attorney for the estate; (iv) compelling the executor to comply with discovery demands previously served; (v) compelling him to produce and file with the court an alleged 2004 will of the decedent; (vi) appointing a guardian ad litem to represent the interests of the decedent’s two infant grandchildren named as beneficiaries in the prior will; (vii) appointing the daughter as executor since she was alleged named as executor in the 2004 will; (viii) staying the issuance of preliminary letters to the executor pending a hearing on the order to show cause; and (ix)adjourning the SCPA 1404 examinations.

Published on: April 8, 2014

Court Rules on an Application for Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said this is an application for preliminary letters testamentary. The decedent died in December 2005 leaving a will (the “2005 Will”) and a prior will in January 2003 (the “2003 Will”). The 2003 will nominates the decedent’s daughter as executor and another daughter as successor executor. The 2005 will also nominates the first daughter as executor. The decedent was also survived by her other daughter.

A New York Will Lawyer said that the 2003 will bequeaths all shares that the decedent had in any companies or corporations to the decedent’s grandchildren, equally and the decedent’s bank accounts to her daughters equally. The 2003 will further provide for bequests of tangible personal property. The 2003 will gives the decedent’s cooperative apartment in equal shares. The remainder of the estate is bequeathed in one-third (1/3) shares to each of the decedent’s daughters.

The 2005 will gives all of the decedent’s jewelry to a daughter, and the balance of the decedent’s tangible personal property located in her home to another daughter and her husband. The 2005 will further provide for a bequest of the decedent’s joint bank account to the daughter executor or if she does not survive, to another daughter. Under Article FOURTH of the 2005 will, the residuary estate is bequeathed to the daughter executor.

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: April 5, 2014

Objectant Moves for Disqualifying Counsel

by Stephen Bilkis

A New York Probate Lawyer said this probate proceeding, objectant moves for an order disqualifying counsel, the petitioner and nominated executor under the will of the decedent. The lawyer crossmoves for sanctions on for making a frivolous motion.

A New York Will Lawyer said that the motion was brought in connection with the contested probate of an instrument. The decedent died in January 2007, survived by three children. A petition for probate was filed and an SCPA 1404 examination was conducted. Objections were subsequently filed by herein objectant. In connection with the depositions and objections, the lawyer, the nominated executor, is represented by of counsel t. Depositions were concluded thereafter.

The motion for disqualification arises out of legal representation of the Company, which has four shareholders who each own 25% of the corporation. The shareholders are objectant, her husband, her brother, and brother’s wife. In 2000, the company commenced two actions one of which, against the brother, remains open. The company is now in bankruptcy proceedings. Objectant seeks disqualification as counsel to executor in the probate proceeding on the grounds that they cannot represent executor, whose interests are adverse to the interests of its former client, objectant.

Published on: April 4, 2014

Court Determines Fee to be Paid to Guardian Ad Litem

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on March 2, 2007, leaving a last will and testament dated June 4, 1993. A petition for probate was filed by a legatee under the will who was related to the decedent by marriage. By order dated February 1, 2010, the court appointed a guardian ad litem to represent the interests of decedent’s missing and unknown distributees. On February 3, 2012, the guardian ad litem filed his report recommending that the will be admitted to probate. At that time, he also filed an affirmation of services. At the request of the court, the guardian ad litem filed a supplemental affirmation on July 24, 2012.

A New York Will Lawyer said the issue in this case is the determination of the fee payable to the guardian ad litem.

Long Island Probate Lawyers said 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 the administration 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 31, 2014

Court Rules on Case Where Multiple Will Documents Involved

by Stephen Bilkis

A New York Probate Lawyer said the subject of this Probate proceeding is the question of revocation of a six-page handwritten document, an alleged carbon copy of which has been offered for probate as the last will and testament of the decedent.

According to a Nassau County Will Contest lawyer, the decedent is an attorney, who died in May 1977. Thereafter, letters of administration were issued to the Public Administrator, County of Nassau, who received the keys to the decedent’s residence from a Nassau County police detective and made a thorough search of the residence.

A New York Will Lawyer said among the decedent’s personal papers the public administrator found a sealed envelope bearing the words “Copy of Deed to Lutheran Cemetery,” “Copy of Last Will and Testament ” and the signature of the decedent. On the back of the envelope, written across the flap was the signature of the decedent.

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 25, 2014

Court Hears Case Regarding Validity of Will

by Stephen Bilkis

A New York Probate Lawyer said a woman died at the age of 91 and was survived by five nieces and nephews, who are the children of her two predeceased brothers. She left no other successor.

The daughter of the woman’s niece offered for probate a document as the woman’s last will and testament. The four other successors also filed waivers and consents to the probate of the proposed document. Preliminary letters testamentary were then issued.

A New York Will Lawyer said the witnesses of the document were subsequently examined. The first witness is also the attorney-draftsman of the proposed document. Afterward, the other grandniece filed an objection to the probate and demand for a jury trial.