Estate Administration

Published on: February 10, 2020

Father, a Convicted Felon, Not Eligible to Serve as Administrator of the Estate of Minor Child, Passalacqua v. State (N.Y. Ct. Cl. 2012)

by Stephen Bilkis

One of the roles of the administrator of the estate is to bring claims on behalf of the estate. In this case, the administrator filed a wrongful death claim on behalf of the estate of his deceased minor daughter. The defendant responded by challenging the administrator’s eligibility to serve as estate administrator.

In New York there are rules related to who can serve as the administrator of an estate. These rules apply whether the person was nominated in a decedent’s will to serve as the executor or the person petitions the courts to serve as the administrator of an intestate estate. According to Surrogate’s Court Procedure Act § 707, anyone is eligible to receive letters unless he or she is ineligible. Among those who are ineligible are felons.

In Passalacqua v. State, the claimant father of the decedent alleges that the decedent died due to the negligence of the defendant. The claim alleges that the decedent, his 12-year old daughter, was attacked and killed by a parolee who was under the defendant’s supervision and that the defendant was “negligent, wanton, reckless and careless” in that he failed to provide reasonable and proper supervision of the parolee.

Published on: February 3, 2020

Decades Old Sexual Abuse Allegations Not Sufficient to Disqualify Executor, Matter of Kalikow, 2008 NY Slip Op 33353(U) (N.Y. Surr. Ct. 12/16/2008)

by Stephen Bilkis

In a will, the testator names the person or persons who he (or she) wants to serve as the executor of his estate. The executor has a great deal of responsibility, as he will be responsible for managing the decedent’s assets, paying estate bills, and distributing them to his beneficiaries. Upon the testator’s death, the person named in the will must petition the Surrogate’s Court to be formally appointed executor. At that point, the person will receive letters testamentary. While the court will give great deference to the judgement of the testator as to who is to serve as executor, the person named in the will is only a nominee. The person must meet New York’s eligibility requirements in order for the court to issue him letters.

Under New York law, a person who is “dishonest” is not eligible to serve as a fiduciary. This means that even if a person was nominated as an executor, if there is evidence that the person is dishonest, the Surrogate’s Court will deny his (or her) petition for letters testamentary and will prohibit him from managing the administration of the decedent’s estate. If the letters have already been issued, the court will revoke them.

In Matter of Kalikow, the decedent named co-executors. Preliminary letters were issued. However, beneficiaries under the will objected to the appointment of one of the co-executors. They alleged that pursuant to Surrogate’s Court Procedure Act § 707, he was not eligible on the grounds of “dishonesty, improvidence, [and] want of understanding.” The court admitted the will to probate but did not issue letters testamentary.

Published on: January 13, 2020

Administrator Permitted to Resign on the Grounds that it was in the Best Interests of the Estate, In re Estate of Tappan, 2016 NY Slip Op 32046(U) (N.Y. Surr. Ct. 2016)

by Stephen Bilkis

In the Estate of Tappan, the daughter of the decedent who was also the administrator of his estate, sought permission from the Surrogate’s Court to resign.

An executor or administrator is the person or entity that is appointed by the Surrogate’s Court to manage a decedent’s estate and distribute its assets according to the terms of the decedent’s will or according to New York’s intestate succession rules. “Executor” is the term used when the person is named in the will, while the term “administrator” is used when person appointed is not named in a will. In either situation, the person or entity must be formally appointed by the Surrogate’s Court and receive “letters” before he or she has the legal right to manage a decedent’s estate.

While the court will not force anyone to serve as executor or administrator, if a person takes on the role then decides that he or she no longer wishes to do the job, pursuant to SCPA § 715 he or she must petition the court and ask permission to resign. Typically, if the administrator is qualified and has started the process of managing an estate, the court will deny a petition to resign, unless the administrator presents legitimate reasons for resigning and names a replacement.

Published on: March 31, 2019

Court Decides Case Involving Promissory Estoppel

by Stephen Bilkis

NY Slip Op 05266

The petitioner brought this case to enforce an oral agreement that would be void because of the statute of frauds. The petitioner’s grounds for this action are unconscionability of the statute of frauds. The court agrees that when promissory estoppel is satisfied it would be unconscionable and egregious to rely on the statute of frauds. Nonetheless, the court concludes that the petitioner can’t rely on this doctrine because the application of the statute of frauds would inflict injury on the petitioner and would be unfair. The court felt that while it would be unfair, it was not unconscionable.

The decedent owned an apartment building. His grandsons contend that before 2006, the had helped their grandfather with maintenance and snow removal on the property. Later, the grandfather asked the petitioners about taking over management duties of the property.

Published on: November 28, 2018

Petitioner Seeks Guardianship of Disabled Sister- In re Harper, 2019 NY Slip Op 50333(U) (N.Y. Surr. Ct., 2019)

by Stephen Bilkis

In this case the Surrogate’s Court considers the whether to grant a petition for guardianship of a person who suffers from intellectual and physical disabilities and is unable to care for herself.

Petitioner Laut appeals the denial of a petition she filed under SCPA Article 17-A for guardianship of her disabled sister. The sister has suffered from severe, permanent disabilities all her life. She suffers from cerebral palsy and mental retardation and requires 24-hour care. She is unable to feed herself, is non-ambulatory, and is non-verbal. Using the Bayley scale of infant and toddler development, the sister has been determined to have a developmental equivalent of a 4-month-old.

The petitioner’s parents had cared for her sister her entire life. However, they both died in 2014. While the petitioner wanted to care for her sister after their parents’ deaths, she stated that she was unable to fully do so because she did not have legal guardianship over her sister. For example, she was not able to arrange for a lease for the sister’s apartment and she was not able to maintain the sister’s supplemental nutritional program. In denying her petition for guardianship, the Surrogate’s Court stated that a hearing pursuant to Mental Hygiene Law 81 was more appropriate.

Published on: May 12, 2018

Court Rejects Extrinsic Evidence in Will Construction Case – Bowler v. Benoit (In re Bruce), 161 A.D.3d 712 (N.Y. App. Div., 2018)

by Stephen Bilkis

In this probate case the court considered the question as to whether it has the authority to consider extrinsic evidence in the determining how to interpret ambiguous terms of a last will and testament.

In her last will and testament, decedent Bruce made a provision as to the disposition of her a portion of her estate, the literal meaning of which would make the provision invalid. In her will, the decedent sought to exercise her power of appointment directing the trustees of two separate trusts, to distribute the assets in her residuary estate to the LB Foundation. A person who writes a will or creates a trust can give his or her beneficiaries a power of appointment, which enables the beneficiaries to direct where their share of the estate or trust goes at their death. In this case, a 1969 trust of which the decedent was a beneficiary gave the decedent the power to determine where her share of the trust would go upon her death. However, due to the wording of the language of the decedent’s will, the literal reading of decedent’s request is not valid because it exceeded the powers that were granted to her in the 1969 trust.

Upon considering summary judgment motions from both the petitioner and the respondent, the Surrogate’s Court noted that the testator’s intent is deciphered from a sympathetic reading of her last will and testament. Accordingly, the court must read the distribution plan that appears to be in the will in light of the testator’s intention. It is clear that the decedent’s intention was to provide property to the LB Foundation. It follows that it did not make sense for her to make a disposition of property that she knew would be invalid.

Published on: May 6, 2018

The Estate of CF v The City of New York

by Stephen Bilkis

The respondent MJP holdings moves for an order dismissing the petition for lack of subject matter jurisdiction, and because a prior action is pending for the same issue in a different court.

Despite the fact that the proceeding was heard on 6/1/18, the history of this case goes back 40 years, starting with the death of the decedent’s grandmother CP. That litigation was only settled in 2017. Her 2 children have passed away. The estate of one child, J, is in litigation. The case with the other child, M, is being litigated as well.

The parties involved here are the petitioner, who is the executor of the decedent’s estate, the grandchild of the decedent, and daughter’s husband, and MJD Holdings.

Published on: May 2, 2018

Will Contest Ends in Summary Judgment

by Stephen Bilkis

Matter of S.

2017 NY Slip Op. 07446

October 25, 2017

Published on: April 17, 2018

Court will void a transaction completed by a person who was incompetent at the time the transaction was executed – Nurse v. Dacres (In re Nurse), 160 A.D.3d 745 (N.Y. App. Div., 2018)

by Stephen Bilkis

In this case the Surrogate’s Court had to consider issues related to a contested guardianship under Mental Hygiene Law Article 81 and invalidating a property conveyance by the person who is the subject of the guardianship. Mental Hygiene Law Article 81 provides that upon petition, the Surrogate’s Court can appoint a guardian to handle the personal and/or financial affairs of a person who has been found to be incapacitated and would suffer harm in the absence of a guardianship.

Here, it was discovered that R. Nurse transferred 50% ownership in real property to his stepson, Dacres. R. Nurse’s biological children, M. Nurse and H. Nurse, stepped in and petitioned the court to be appointed co-guardians of R. Nurse. They also requested that the court void the transaction that conveyed R. Nurse’s property to Dacres. At the hearing, evidence was produced that confirmed that R. Nurse had dementia. Further, there was clear evidence that R. Nurse was incompetent at the time that he signed the deed and that he was subject to undue influence. Thus, the court voided the deed and granted the petition of M. Nurse and N. Nurse to be appointed co-guardians. Dacres appealed.

In ruling in favor of the petitioners, the court noted that the general rule is that it is assumed that a person is competent. The burden is on the petitioner to prove with clear evidence that the party is not competent. When it comes to voiding a property conveyance, the burden is on the petitioner to show that the party was not competent at the time of the conveyance.

Published on: February 25, 2018

Court upholds restrictions on the sale of property disposed of in a will – Bajic v. Bonanno (In re Bonanno), 2017 NY Slip Op 4436 (N.Y. App. Div., 2017)

by Stephen Bilkis

In this probate proceeding the court had to address an issue related to the construction of terms in the will related to the restriction on the disposition of real estate.

Decedent M. Bonanno died in 2002, leaving a last will and testament dated August 1, 1983. The Surrogate’s Court admitted the will to probate. The will provided that specific real estate that she owned in Queens go to her 4 children, and that it not be sold while her children remained single, and while any of them still lived in the property. It also stated that when the property was sold, the proceeds would be divided equally among her four children. Two of the decedent’s children petitioned the court for a construction of the provisions of the will related to the real property. They sought an order stating that each of 4 sibling owns a ¼ share of the property in fee simple without restriction. After filing the petition, the petitioners also filed a motion of summary judgment on the petition. The Surrogate’s Court denied the motion and the petitioners appealed.

In a summary judgment motion, the moving party has the burden of making a prima facie showing that based on the undisputed material facts, he or she is entitled to judgment as a matter of law. If the moving party is able to do this, then the burden shifts to the opposing party to rebut the moving party’s motion and show that there are material facts in dispute.