Queens

Published on: March 10, 2014

Court Rules on Stipulation of Settlement

by Stephen Bilkis

In connection with a petition for probate, the court has before it for review a stipulation of settlement which was expertly negotiated and crafted by the guardian ad litem appointed to represent the interests of decedent’s sister.

A New York Probate Lawyer said that decedent, a resident of New Hyde Park, Nassau County, died in February 2009, leaving a last will and testament. She was survived by 19 statutory distributees, including four siblings and the 15 children of four predeceased siblings.

The propounded instrument leaves all of decedent’s property in three equal shares, two of which pass to decedent’s sisters. The will directs that the third equal share be paid over to decedent’s niece, who is the nominated executor and the petitioner herein. It makes no mention of decedent’s third surviving sister, who suffers from Alzheimer’s disease.

Published on: January 3, 2014

Case Issue is Whether Court Erred in Denying Probate of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, the decree denying probate to the propounded instrument reserved for determination by supplemental decree all applications for costs, allowances, and fees. The attorney for petitioner who claims to be the sole statutory distributee of the decedent, asks the court to fix his reasonable compensation and costs and to direct payment from the general estate. The attorney did not proceed in the manner required by section 231-a, Surrogate’s Court Act, and hence his application must be based upon section 278. He is not entitled to costs or an allowance under that section. Even if he had proceeded under section 231-a, he would not be entitled to have his fee paid out of the general estate for he rendered no services of benefit to the estate. His services were solely for the benefit of his individual client.

A New York Will Lawyer said that, the position of the client was, as the attorney states, as anomalous one. A 1918 will has been admitted to probate in British Honduras ‘until a later Will be found’. A 1955 instrument was offered for probate here as a lost will. It was to the interest of the alleged distributee that the 1955 instrument be proved to have been duly executed (thus revoking the 1918 will), but that it be denied probate on the ground that it was not in existence at the time of the decedent’s death. The attorney was thus partly on one side in the contested probate proceeding and partly on the other side. He accordingly filed no pleading and took no active part in the contest. Before submission of the case to the jury he made motions appropriate to his client’s interests. He was otherwise quiescent, hopeful that the contending factions would destroy each other. The verdict of the jury was against the proponent on the question of the making of the will.

A Queens Probate Attorney said that, the attorney’s present contention that he represents a party who has succeeded in the contest is contrary to the record herein. He attempted to serve only his own client’s interests, he rendered no services of benefit to the estate and he was not successful insofar as his client’s cause is concerned. There is no basis for allowing him costs, compensation or allowance out of this estate. The attorney for the proponent in the probate proceeding request an allowance for their services. In prohibiting an award of costs to an unsuccessful contestant in a probate proceeding, section 278 explicitly excepts from that prohibition one ‘named as an executor in a paper propounded by him in good faith’, and it further affirmatively provides that ‘where a person named as the executor in a will propounds the will for probate, such person so named as executor may, whether successful or not, in the discretion of the surrogate, be awarded costs and all necessary disbursements made by him and all expenses incurred in the attempt to sustain the will.’

Published on: January 2, 2014

Court Discusses the Issuance of Premliminary Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said that, a motion and cross motion places in issue the rights of persons interested in this estate to obtain discovery from the preliminary executor pursuant to subdivision 4 of SCPA 1412. In 1963, based upon the recommendation of the Bennett Commission, the Legislature created a new type of letters called “preliminary letters testamentary” and a new fiduciary office called “preliminary executor”. SCPA 1412 describes in detail the powers and limitations of such office and the expeditious procedure by which such letters may be obtained. Before this new fiduciary office was created, when pressing matters of estate administration arose in the course of a delayed probate proceeding, the nominated fiduciary could be involved procedures obtain letters of temporary administration, a fiduciary office with rather limited powers.

A New York Will Lawyer said that, when it was originally enacted as SCA 153-a, as well as now, SCPA 1412, contained a subdivision which provided: “The court may limit preliminary letters testamentary to the receipt of assets specified in an order and may prohibit the collection of any other assets of the decedent, may make such directions as it deems proper and necessary in respect of the custody and preservation of all papers of the decedent and for making them available for examination and copying by any person or persons interested in the estate or may limit and restrict the person named in such letters in any manner that the court deems advisable for the effective protection of the rights of all persons who may have an interest in the estate of the decedent” (now subd. 4 of SCPA 1412).

A Queen Probate Attorney said the issue in this case is the construction of the phrase giving the court in issuing preliminary letters discretion “to make such directions as it deems proper and necessary in respect of the custody and preservation of all papers of the decedent and for making them available for examination and copying by any person or persons interested in the estate”.

Published on: December 26, 2013

Claimant Brings Suit Based on Oral Promise by Decedent

by Stephen Bilkis

A New York Probate Lawyer said that, this is an application by the preliminary executors in a probate proceeding to dismiss a claim asserted against the estate. This claim to one-half of the estate was made by the claimant simultaneously with his opposition to a decree approving a compromise agreement which would dispose of a heavily litigated protracted will contest. Under several wills of the decedent, including this last will, he would be entitled to a $20,000 legacy. The claim is based on an alleged oral promise by the decedent to make a will which would give to the claimant one-half of the residuary estate in consideration of the claimant’s conveyance to the decedent of a one-half interest in a house on Fire Island. This house was sold on January 7, 1973 for $47,000. The claimant asserts that his interest in the estate is upwards of $500,000.

A New York Will Contest Lawyer said that, a bill of particulars served in support of the claim alleges that the agreement was partly oral and partly in writing. The writing is a will dated January 18, 1965 which was revoked by a later will. There were several later wills, and deeds affecting the Fire Island property. The first deed made on February 2, 1963 was given to the claimant as grantee by the decedent as grantor. That deed reserved to the decedent a life estate. The next deed dated January 16, 1965 was executed by the claimant, creating a joint tenancy with right of survivorship in himself and the decedent. The third deed is from the joint tenants as grantors to the decedent as grantee. The will relied upon by the claimant bequeaths to him one-half of the residuary estate after bequests of tangible personal property and eight general legacies of $5,000 each and another bequest relating to stock in a closed corporation.

The issue in this case is whether the claim should be dismissed on the ground that the claim is not maintainable because it is barred by the statute of frauds.

Published on: May 31, 2013

Petitioners Look for Power to Evict Tenants from Property

by Stephen Bilkis

The Facts of the Case:

On 30 December 2006, the decedent died a resident of Nassau County leaving a last will and testament dated 13 July 2006. On 19 March 2007, the will was admitted to probate and letters issued to A and B as co-executors and co-trustees. After making some specific bequests, the decedent left her residuary estate to her four daughters, A, B, C, and D, in equal shares; and placed C’s share in a Supplemental Needs Trust under her name created pursuant to Article Fourth of the will. Under the will, the trustees were given discretion in distributing income and principal to C; that at C’s death, the remainder of the trust, if any, will pass to C’s son, CC; and D is the named successor fiduciary. The estate contains approximately $125,000.00 in personal property and three homes, which are valued in the aggregate at $1,285,000.00.

Thereafter, a New York Probate Lawyer said five miscellaneous proceedings were filed with the court in connection with the estate administration and that of the trust. On 10 December 2008, some of the issues raised were resolved in a stipulation of partial settlement entered into by all the interested parties, viz: that A and B, as co-trustees of the supplemental needs trust, would enter into a contract for the purchase of property-two which C and CC agreed to use as their long-term primary residence; that C and CC, who were residing in decedent’s real property, property-one, would vacate that property and move to property-two; and that the fiduciaries are obliged to put property-one up for sale within 90 days after respondents move out. Pursuant to the agreement, the co-executors purchased property-two and made it available to respondents as of 16 March 2009. Nonetheless, respondents refused to move out of property-one, and the agreement does not specify a date by which they are required to do so.

Published on: December 21, 2012

Court Determines the Proximate Cause of Injuries

by Stephen Bilkis

In an action to recover damages for personal injuries, the plaintiffs allegedly sustained personal injuries when the limb of a tree fell onto the motor vehicle in which they were traveling, in the defendant Village of Great Neck Estates. Thereafter, a New York Probate Lawyer said that, the plaintiffs commenced this action, alleging, inter alia, that the accident and their resulting injuries were proximately caused by the negligence of the Defendant County of Nassau in failing, among other things, to remove a dead and/or diseased tree. A Nassau Estate Litigation Lawyer said that, the defendant County subsequently cross-moved for summary judgment dismissing the complaint insofar as asserted against it on the grounds that the plaintiffs had not complied with the prior written notice requirement set forth in section 12-4.0 (e) of the Administrative Code of Nassau County and that it lacked both actual and constructive notice of the purported hazard. A Nassau Estate Litigation Lawyer said that, the defendant County additionally sought to dismiss the complaint insofar as asserted by the plaintiff Lakeysha Agugbo on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Supreme Court properly denied the County’s cross motion and held that: In an action to recover damages for personal injuries, the defendant County of Nassau appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered February 21, 2007, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

Queens Probate Lawyers said the issue in this case is whether defendant is liable for damages, for the injuries sustained by the plaintiff on the ground that the resulting injuries were proximately caused by the negligence of the Defendant County in failing, among other things, to remove a dead and/or diseased tree.

The Court in deciding the case said that, Prior written notice statutes apply to “actual physical defects in the surface of a street, highway or bridge of a kind which do not immediately come to the attention of the town officers unless they are given actual notice thereof”. Accordingly, the Court held that, the prior written notice requirement invoked by the County does not apply to the facts of this case. Furthermore, the County failed to establish a prima facie case that it lacked actual and constructive notice of the alleged hazard in this case. Lastly, the Court held that, the plaintiff Lakeysha Agugbo was not required to establish that she sustained a serious injury in the subject accident as she did not allege any negligence on the part of the County in the use or operation of a motor vehicle. Instead, the allegations against the County related to premises liability. Therefore, the Court held that, the County does not qualify as a covered person within the meaning of Insurance Law § 5102 (j) and § 5104 (a).

Published on: December 20, 2012

Court Decides Whether Determination and Notice of Violation is Null and Void

by Stephen Bilkis

The plaintiffs own 1 of 20 lots comprising a subdivision known as Estates at Brookview. As such, the plaintiffs are members of the Estates at Brookview Homeowner’s Association (hereinafter the Association) and subject to its bylaws and “Declaration of Restrictions, Covenants, and Easements” (hereinafter the Declaration). In the fall of 2004 the plaintiffs constructed a shed on their property. Upon inspection of the completed structure by the Town of Chester’s Building Inspector, the shed was approved and the plaintiffs were issued a certificate of compliance.

A New York Probate Lawyer said after complaints about the shed were received by the Board of Directors of the Association, the plaintiffs received a document entitled “Determination and Notice of Violation” (hereinafter the DNV), issued by the Board, advising them that their shed violated certain provisions of the Declaration. The plaintiffs contend that the Board lacked the authority to issue the DNV.

As a result, a New York Estate Litigation Lawyer said that, plaintiffs filed an action for summary judgment, declaring that the document entitled “Determination and Notice of Violation” issued by the Board of Directors of the Estates at Brookview Homeowner’s Association is null and void. A New York Estate Litigation Lawyer said that defendants filed a cross motion for summary judgment and for an award of an attorney’s fee pursuant to the Association’s bylaws and “Declaration of Restrictions, Covenants, and Easements.

Published on: December 19, 2012

Here is Why You Should Have a Living Will

by Stephen Bilkis

No one really wants to think about what is going to happen when they die. However, it is necessary to plan for this. There are several documents that should be part of your estate plan. The first is the will. This document provides information about what you wish to happen to your estate upon your death. An estate attorney can help you prepare a will that will meet the necessary requirements of the law.

Another document that should be part of your estate plan is an Advanced Health Care Directive (AHCD). The AHCD is a document that is written to express your wishes in regard to your health care needs should you become terminally ill, brain dead, or permanently unconscious. This document may also be referred to by an estate lawyer as a living will.

No matter how wealthy you are or what type of assets that you have in your estate; every person should have a living will. Here are several reasons why you should have a living will and discuss the document with your estate attorney.

Published on: January 19, 2012

Court Rules on Will Contest

by Stephen Bilkis

The decedent died on April 15, 1954 leaving a last will and testament that was admitted to probate on April 30 of the same year. He was survived by his wife and his brother. After about 11 and 1/2 years, the wife filed an appeal under the Decedent Estate Law that contested the fourth, fifth and sixth paragraph of the will. Her claim was that in gives more than 50% of the testator’s estate to a religious association.

A New York Probate Lawyer says that Section 17 of the Decedent Estate Law says ‘No person having a husband, wife, child, or descendant or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association, corporation or purpose, in trust or otherwise, more than one-half part of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more. The validity of a devise or bequest for more than such one-half may be contested only by a surviving husband, wife, child, descendant or parent…’

The decedent had made his wife, his brother and his friend and attorney executors of his estate. He gave to his wife $2,500 plus any earnings of the residue remainder of his estate, and she can get part of the principal up to $500 in a calendar year in case of illness. Upon his wife’s death or if his wife precedes him, his brother gets $1,000. $1,000 to be given to his churchin memory of my father and mother. To the church, he bequests $1,000 in memory of his wife. The rest of the residuary estate is given to the church.

Published on: September 17, 2011

What new tax laws will mean for married couples, explains New York Estate Planning Lawyers

by Stephen Bilkis

In 2010 when a person died, there would have been no estate tax owed, according to a New York Probate Lawyer. He added that in 2010 the estate tax had been repealed.

In 2011, estate taxes will be reinstated but a high amount of $5 million will be set. In the past, two spouses could individually file their own exemptions, which brought this number up to $10 million. The catch was they had to use caution with the way they labeled assets and had “to have bypass trusted drafted by estate planning attorneys”.

Trust preparation costs as much as $5,000 to $10,000. President Obama’s new tax law aims to create decent tax breaks for married couples because spouses can use leftover portions of a deceased spouse’s estate tax on their own exemptions with no trust requirements. This means a taxable estate of $3.5 million that is left behind could be added as part of the $5 million exemption for a later date or time. Families in Manhattan a Queens qualify for these advantages.