Staten Island

Published on: February 3, 2015

A Convicted Felon Files for Guardianship

by Stephen Bilkis

Probate Lawyers said that according to sources, a convicted felon who is unrelated to two subject children has filed for guardianship of these children who presently reside with him and his wife. The maternal uncle and adopted brother of the children has cross-petitioned for guardianship of the two subject children and opposed the petition of the said felon.

The court ruled that in a guardianship/custody dispute between two parents, the court is bound to make its determination based solely upon what is in the best interests of the children. The Court of Appeals firmly established a “totality of the circumstances” approach to all custody determinations, indicating that no one factor should be determinative in deciding what is in the best interests of the child. Even though this case does not involve two parents, the totality of the circumstances analysis is appropriate herein.

A New York Estate Lawyer said that under the totality of the circumstances rule no one factor is determinative in making an award of custody. Determining what is in the child’s best interest requires that consideration be given to many factors such as: the relative stability of respective parents, the wishes of a child, the effect of separation of siblings, the length of time the present custody arrangement has continued, the care and affection shown to the child by the parents, the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the atmosphere in the homes, the morality of the parents, the financial standing of the parents, the refusal of a parent to permit visitation and or the willingness of a parent to encourage visitation and the overall relative fitness of the parties. The existence or absence of any one factor cannot be determinative since the court must consider the totality of the circumstances. In the end, any determination of child custody must be based upon what is for the best interest of the child and what will best promote its welfare and happiness. Even in a guardianship proceeding, the same best interest test must apply for the benefit and welfare of these children. Neither party is a parent. Although the respondent is a blood relative, there is no prima facie preference for a blood relative over a person who is not related to the child.

Published on: January 27, 2015

Court Discusses Credit Shelter Trust

by Stephen Bilkis

A Probate Lawyer before the court is a petition brought by M, the surviving spouse of JM. M is the lifetime beneficiary of a credit shelter trust created under decedent’s last will and testament, and she and the trust share a tenancy in common in the residential real property in which petitioner resides. Petitioner asks that her (M) children, MS and JJ, as co-trustees of the trust, be compelled to distribute funds pursuant to the terms of the trust. Petitioner also asks that the court direct the trustees to pay petitioner’s claims for reimbursement of expenditures which she made in connection with the real property, and the cost of her home health companions.

Petitioner also seeks an order compelling the trustees to enter into a reverse mortgage on the real property. MS, in her capacity as co-trustee, has indicated her willingness to provide the relief requested in the petition, but has been unable to do so without the cooperation of her co-trustee, JJ. Petitioner asks the court to remove JJ as co-trustee if he continues to refuse to provide petitioner with the relief she is seeking, and to charge JJ with costs and legal fees incurred in connection with this proceeding.

An Estate Lawyer said JM died on September 2, 1991, leaving a last will and testament dated April 18, 1991. He was survived by his wife, M, and their five adult children, MS, JJ, MJ, JP and J. The will was admitted to probate and letters were issued to M as executor on November 19, 1991. On May 12, 1992, letters issued to MS and JJ as co-trustees of the credit shelter trust created under Article Second of decedent’s will.

Published on: January 13, 2015

Court Reviews Previous Account with Regard to Double Commissions

by Stephen Bilkis

A Probate Lawyer said the deceased died May 24, 1905, leaving a last will and testament which was duly admitted to probate in June, 1905. The testator left a widow and one child. The provisions of the will called the attention of the Court by the appellants.

A Kings County Probate lawyer said that in 1906 the executors of the will filed in the Surrogate’s Court an account of their proceedings to November 30, 1906. On the latter date a decree was entered in effect that the executors had accounted for all the money and property of the estate which had come to their hands as executors and judicially settling and allowing the account as filed. The decree further provided that the balance of cash and personal property in the possession of the executors was the sum of $11,392,724.22; that out of the balance in the hands of the executors they retain and pay over to each executor his or her statutory commission on the said property and estate for receiving, administering, and paying over the same, the sum of $149,494.39 to each, and one-half thereon to each for receiving the same as trustees; that the executors should pay over to and transfer to themselves as trustees the balance of cash and personal property then remaining in their hands to be held and administered by them under the trusts created by the will; that they should thereafter continue to perform their duties and exercise their powers as executors under the said will in all matters of administration, sale of real property, or anything else remaining to be done, and that said executors be and they hereby are discharged and released from all liability in respect of all matters and on account of all other acts and doing embraced in the said accounting and this order and decree.

Nassau County Probate Lawyers said from year to year thereafter down to and including the year 1911 separate accounts were filed by the parties, covering their proceedings as executors and also as trustees. As executors they accounted for the proceeds of the sale of real estate and for the rents and income of the property of the estate, both real and personal. Decrees were duly made by the Surrogate’s Court settling such separate accounts, and, although they do not appear in the record, the briefs contain a statement that in each instance the decrees directed them as executors to turn over to themselves as trustees the proceeds of the sales of the real estate made by them as executors in each year, and they were therein allowed one-half the statutory commission for receiving the proceeds of the sales of real estate, one-half commissions for paying the same out as executors to themselves as trustees, and one-half commissions as trustees for receiving the same.

Published on: January 5, 2015

Court Determines if Charging Lien Exists if Favor of Former Lawyer

by Stephen Bilkis

A Probate Lawyer said that from the records, the genesis of this litigation arose when a lawyer was representing a corporation in regard to its purchase of the premises pursuant to a written contract. The contract was dated and was an “all cash deal.” The court notes that unlike contracts in another County, the real estate contract is actually dated. The transaction was scheduled on a specific date but did not when allegedly the seller became disenchanted with the terms and upset that the lawyer was representing his sister in regard to her interest in this transaction and their mother’s estate. The owner’s sister, sometime later apparently issued a power of attorney in favor of the lawyer. Why this was relevant is a mystery in that the seller is the owner individually and not an estate. Also the seller had his own independent counsel in negotiating the contract of sale to the corporation. In any case it is conceded that the seller refused to close title as scheduled. A litigation commenced to compel specific performance. This resulted in the order of the Supreme Court, directing the seller to honor the contract and close title within thirty days of the order. In spite of achieving the legal goal for which the lawyer had been directed to commence the litigation, for some reason the corporation did not seek to enforce the judgment and compel the seller to close.

As Estate Lawyer said that later on, the corporation notified the lawyer that his services would no longer be needed to complete the closing with the seller. A second lawyer became the attorney for the corporation in regard to the purchase. At the closing of title, a written escrow agreement was entered into between the former lawyer and the principal of the corporation. The agreement directed the second lawyer to hold the sum of $10,000.00 in escrow pending resolution of the former lawyer’s claim for the legal fees incurred in representing the corporation in the contract negotiations and subsequent litigation. The agreement recites that Schwartz is asserting a “charging lien” in regard to the services he rendered on behalf of the corporation.

A Nassau County Probate Lawyer said the issues presented are; whether or not a Charging Lien Exist in Favor of the former lawyer? Whether or not retainer agreement is required?

Published on: December 18, 2014

Plaintiff Seeks to Increase Damage Amount

by Stephen Bilkis

Probate Lawyers said the defendants appeal from an order of the Supreme Court, Richmond County, which granted the plaintiff’s motion to remove the case from the Civil Court of the City of New York to the Supreme Court, Richmond County, to amend the complaint to set forth a cause of action for wrongful death and to increase the amount of damages requested.

Following an automobile accident which occurred on July 10, 1971, the plaintiff brought this action in the Civil Court of the City of New York, Richmond County, on May 24, 1972, alleging negligence on the part of the defendants and requesting a total of $14,000 damages for injury to personal property, for personal injuries sustained by his son, aged 16, and for consequential damages sustained by the plaintiff-father.

An Estate lawyer said that the two automobiles of the defendants collided, sending one of them into the parked automobile in which the child was sitting. It is conceded that he died of Leukemia on August 14, 1972. On June 25, 1974, the plaintiff, as administrator of his son’s estate, moved in the Richmond Supreme Court for leave to amend the complaint so as to assert an action for wrongful death, to increase the amount of damages requested by the plaintiff, both as administrator and parent, and to remove the case from the Civil Court to the Supreme Court, which would have jurisdiction over the increased amount claimed.

Published on: December 15, 2014

Court Decides Case Reqarding Distribution of Retirement Funds

by Stephen Bilkis

An Executrix in a purported will dated June 29, 1964, has petitioned for its probate. Decedent’s brother has filed objections. The other eight distributees have appeared in the proceeding but have not filed objections.

A Probate lawyer said that subsequent to probate proceeding, all nine distributees, as plaintiffs, commenced an action in the Supreme Court of Richmond County against executrix as an individual, and against New York City Employees’ Retirement System of the Board of Estimate of the City of New York.

According to the complaint, the distributees seek, in that action, to set aside a designation dated January 10, 1956, whererby the Decedent designated the said the executrix as the beneficiary of his interest in funds payable on his death by the Retirement System.

Published on: December 9, 2014

The Court Decides if a Company is Authorization

by Stephen Bilkis

Probate Lawyer from the records, the instant case involves a will contest as regards the legacy of the decedent. The decedent died in 1905. By her will she bequeathed $10,000 to a Hose Company ‘to be kept at all times intact and the income derived from the safe and judicious investment thereof to be devoted to the reasonable and proper uses of said company for whatever purposes its members acting as an organization may see fit to direct.’ If, however, the legacy for any reason ‘shall lapse or fail or for any cause not take effect in whole or in part,’ she bequeathed it to the one who survived her.

The Hose Company was a corporation organized for the purpose of aiding in the suppression of fires in the village. It could only engage under the statute in such business as properly belongs to hose companies. In taking part in the prevention of fires it was placed under the control and subject to the orders of the village fire authorities. Annually its trustees must file an inventory of its property and an affidavit that it has not directly or indirectly engaged in any other business. Before its certificate of incorporation could be filed it had to be approved by the trustees of the village. It might take and hold personal property bequeathed to it, and it was further said to be capable of taking and holding property for the purpose of its incorporation and for no other purpose. It was named after the father of the decedent. To it the legacy was paid in 1906.

The issue raised before the court is whether or not the company is authorized to received the legacy.

Published on: December 3, 2014

Court Reviews Will Provisions

by Stephen Bilkis

Probate Lawyers saidiIn this Probate case, Decedent died on January 7, 1881, leaving a last will and testament, the third and seventh clauses of which are as follows: ‘Third. I desire to make ample provision for the support and maintenance of my said wife, and, in addition to what I have above given, I order and direct that my executors, before paying the legacies hereinafter mentioned, do set apart of my estate the sum of one hundred thousand dollars, and keep the same invested and out at interest, and that they apply the interest or income therefrom to the use of my said wife, in half yearly payments, or oftener, if convenient, during the term of her natural life; and that from and after her death they pay over the said sum of one hundred thousand dollars to our adopted son, if he shall then have arrived at the age of twenty-eight years; but if at the decease of my wife he shall not have arrived at the age of twenty-eight years, then my executors are directed to keep the same invested until he shall have arrived at that age, and that they apply the interest or income to his use, and on his arrival at the age of twenty-eight years the said principal and the accumulated interest (if any) is to be paid to him; but if my said adopted son shall die before he arrives at the age of twenty-eight years, and not leaving lawful issue him surviving, then the said sum of one hundred thousand dollars shall be divided as follows, and I do give and bequeath the same accordingly.

An Estate Lawyer said it was held by the surrogate, and upon appeal by the supreme court, that the heir took a vested remainder in the $100,000 which the executors were directed to set apart and hold for the benefit of the widow during her life, and that he took it by virtue of the language contained in the third clause of the will; that, therefore, the testator did not die intestate as to any portion of his estate; and that his next of kin were not entitled to any hearing upon the accounting. Without determining whether or not the courts below were right in their construction of the third clause of the will, we have no reason to doubt that he took a vested interest in remainder in the $100,000 under the residuary clause. It is clear that the testator did not intend to die intestate as to any portion of his estate. He had taken particular care as to the dispositions made in the prior clauses of the will, and it is true that in several of them he provided distinctly that in certain contingencies the gifts should become part of his residuary estate, and that he made no such provision in reference to the $100,000. But we do not deem that circumstance of much importance.

Nassau County Probate Lawyers said in this case the residuary estate was large, and no direction was given in the will for the disposition of the income thereof until the heir reached the age of 28 years; and the next of kin of the testator, therefore, claim that such income was undisposed of, and that they were entitled to the same. We think the disposition of the income is controlled by the provisions of the Revised Statutes, which provides that ‘when, in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.’ There was no direction whatever for the accumulation of the income.

Published on: November 22, 2014

coexecutors Deemed Unfit in Probate Proceeding

by Stephen Bilkis

A New York Probate Lawyer said in this Probate action, an Order and decree (one paper), Surrogate’s Court, New York County, entered on or about May 22, 1995, which removed the preliminary coexecutors, and appointed as temporary administrators, affirmed, without costs.

A Kings County Probate attorney said that the Surrogate’s removal of the preliminary coexecutors pursuant to SCPA 711 and 719 was a proper exercise of discretion, and no evidentiary hearing was required under the particular circumstances. While the Surrogate’s characterization of the facts as “undisputed” may not have been technically accurate, the unfitness of the coexecutors was established by a combination of documentary proof and the coexecutors’ own concessions, and the totality of written submissions failed to raise any triable issue of fact.

The unfitness of the coexecutors to take responsibility for this $1.2 billion estate, bequeathed primarily to charity, was manifest. While “courts will not undertake to make a better will nor name a better executor for the testator”, the standard of behavior of a fiduciary is “[n]ot honesty alone, but the punctilio of an honor the most sensitive”.

Published on: November 13, 2014

Validity of Italian Wedding in Question in Estate Administration Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that the petition in this probate proceeding describes the respondent, as decedent’s ‘alleged widow’. The latter claims that she married decedent by proxy in a civil ceremony performed in San Mauro La Bruca, Province of Salerno, Republic of Italy, on October 26, 1950, in accordance with the laws of that Republic. Decedent’s five children of a prior marriage question the performance and validity of such marriage.

A New York Estate Lawyer said that a preliminary hearing was ordered on the issues so raised and proof was taken thereon. Nine documents were admitted in evidence without objection in support of the widow’s claim. Exhibit 1, in English, is an application by decedent for the issuance of an immigration visa for the widow’s entry into this country. Exhibits 2 to 9, inclusive, are certified copies of records of the Bureau of Vital Statistics of San Mauro La Bruca aforementioned, which were required by the Civil Code of Italy for the performance of the proxy marriage in question. These documents are in Italian, translated into English and properly authenticated.

Thereafter, decedent executed a power of attorney before a notary public in Brooklyn, N. Y., by which he constituted and appointed his nephew, domiciled and residing in San Mauro (decedent’s native town), ‘to represent him in the celebration of a civil marriage in the Town of San Mauro La Bruca, Province of Salerno, Republic of Italy, between himself and the daughter of the decedent domiciled and residing in San Mauro’. Decedent also executed a petition to the Attorney General of the Court of Appeals of Naples, Italy, seeking permission to marry the said woman in San Mauro by power of attorney granted for that purpose as required by Article III of the Civil Code of Italy, which was granted by the Attorney General pursuant thereto on September 21, 1950.