Staten Island

Published on: October 25, 2014

petitioners Move to Withdraw Petition for Probate

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding where petitioners move to withdraw their petition to probate a copy of a testamentary instrument as a lost will pursuant to SCPA 1407and have letters of administration issue instead.

The pertinent facts are as follows:

A New York Estate Lawyer said on 26 October 2000, J, the decedent died. He left a will apparently executed on 23 March 1995. Under the instrument, the decedent left her estate to her two sisters, JB and AB, or the survivor. She named JB as executor and AB as successor. JB predeceased the decedent without issue. As a result, the entire estate passed to AB.

Published on: October 22, 2014

Court Decides Motion to Vacate Will

by Stephen Bilkis

A New York Probate Lawyer 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: October 12, 2014

Second Wife Opposes Preliminary Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said a man died leaving a purported will dated March 20, 2009. He was survived by his wife from a second marriage and by five children, one of whom is under a disability. A guardian ad litem was appointed for the disabled child. The purported will provides that one-third (1/3) of the residuary estate is to be placed in a supplemental needs trust for the decedent’s wife. The remainder of the residuary estate is divided into seven equal shares with one share for each of the decedent’s children (other than the disabled child) and the decedent’s three step-children. The purported will nominates the decedent’s daughter and her husband, as executors. The purported will has been offered for probate by the nominated executors. A waiver and consent was signed by the wife from the second marriage on May 12, 2009 and filed on June 16, 2009.

The petitioners have filed an application for preliminary letters testamentary. The petition is opposed by the second wife. She has also moved to revoke her waiver and consent. She has filed an affidavit in support of the motions. According to her, she and the decedent were married in 1977. Each had been married previously, their former spouses having passed away. She had three children from her first marriage, and the decedent had five children from his first marriage. At the time of the marriage, she owned a residence in Sea Cliff, New York. Prior to the marriage, the decedent sold his residence and moved in with her.

A New York Estate Lawyer said the second wife claims that it was always their intention that upon her death, her residence would be given to her children reserving the right for decedent to reside there. In 2007, at the urging of the decedent’s daughter and son-in-law, the decedent and the second wife consulted with an attorney at which time she expressed her desire that the residence pass to her children. The attorney prepared a will for each of them and an Irrevocable Trust. The second wife claims she did not understand the intricacies of the trust agreement but was advised and assured that upon her death her children would get her residence.

Published on: September 17, 2014

Court Finds Issues with Preprinted Trust

by Stephen Bilkis

A New York Probate Lawyer said that, this case, and an analogous matter decided on the same day, raise troubling questions about the use of pre-printed or form living trusts, which are now being heavily marketed in New York State. The instant case is especially disturbing, because its trust takes the form of loose pages contained in a three ring binder. The proceeding was initiated by the petitioner” for the probate of the Will of the decedent who died on September 9, 1996. The decedent’s Will, executed April 30, 1996, leaves his entire estate to the ” Revocable Living Trust dated April 30, 1996 and any amendments thereto.” The trust agreement provides for lifetime income and principal payments to the decedent as he directs. Upon the decedent’s death the principal remaining is to be distributed to the petitioner, a friend. An alleged amendment leaves 99.75% of the principal balance to the petitioner and .25% to another friend. The decedent is the sole lifetime trustee. The petitioner is either sole personal representative under the Will and sole successor trustee under the trust, or a co-fiduciary in each. A prior Will, dated October 24, 1990, which bequeathed one tenth of one percent of the estate outright to the other friend and the balance to the petitioner, was also filed with the court. The decedent left assets of about $1 million, of which approximately $950,000 had been transferred into the trust and passes according to its terms and $60,000 remained in his name at death and passes according to the provisions of the Will.

A New York Estate Lawyer said that, in reviewing the probate submissions, the court discovered that both the Will and the trust were so ambiguously worded that it was impossible to determine the decedent’s wishes regarding one of the most fundamental elements of his estate plan–the nomination of the fiduciary. Further examination of the documents revealed a staggering number of additional ambiguities, inconsistencies, apparent irrelevancies, and outright errors, many of which pose major problems in ascertaining or effectuating the decedent’s dispositive intent.

A Nassau County Probate Lawyers said that, at this same time, another construction proceeding involving a form living trust, which contained provisions analogous to those in the document already under review, was brought before the court. The executor of the Will of concerned that the merger of legal and equitable interests in her father’s trust might render it ineffective and hence not a proper receptacle for the pour-over of his estate assets, sought a construction permitting all of the property to be disposed of according to the trust’s terms. Faced with the Howard request for construction of similar provisions, as well as with the immediate need in the instant case to identify the fiduciary and to ascertain the decedent’s intentions regarding other significant provisions of both instruments, this court determined that a construction of the instant Will and trust was necessary at the present time. The Surrogate’s Court has the power to construe a Will when construction is necessary to determine questions in a proceeding before it or to make a complete disposition of a matter. Because one major obscurity concerning the ultimate disposition of the probate estate in the instant matter involved minors or unborn as possible takers, a guardian ad litem was appointed.

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: 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.

Published on: June 15, 2014

Petitioner Files Probate Action Based on Will Contest

by Stephen Bilkis

A New York Probate Lawyer said on 17 June 2007, seven months after executing her will, the decedent, AB, died. Her husband predeceased her in 2001, and she never had any children, biological or adopted. The decedent was survived by six distributees: NK, GKH, and EKS (children of the decedent’s predeceased brother, HK; and, DK, BK, and KK (the children of decedent’s predeceased nephew, RK, and who apparently spell their surname differently, with a double last letter). The six distributees reside in Australia.

The proponent and executor, G, had been employed by the decedent as a full-time caregiver who lived in the decedent’s home.

A New York Will Lawyer said on 21 September 2007, G filed a petition for probate, stating that the decedent left no distributees, surviving or deceased. Under Paragraph 6(a) of the petition, the “name and relationship” of all persons with a “legacy, devise or other interest, or nature of fiduciary status” is asked. In G’s original probate petition, she stated that she was the decedent’s live-in companion and the beneficiary of the decedent’s entire estate, as well as the designated executor. The only other individual named by G as a person interested in the decedent’s estate is G’s sister, RG, a resident of Ukraine, who is listed as the successor beneficiary of the decedent’s entire estate and the nominated successor executor. The petition reflects 23 Alexander Drive in Oyster Bay, which had been the decedent’s home, as G’s address. In response to question 8(a), which asks whether “any beneficiary under the propounded will, listed in Paragraph 6 or 7 above, had a confidential relationship to the decedent,” G indicated that she, “petitioner,” had a confidential relationship with the decedent.

Published on: May 26, 2014

Family Member Files Objections to Accounting in Estate Proceeding

by Stephen Bilkis

A New York Probate Lawyer said the decedent died in May 2004, leaving a will which was admitted to probate. The decedent was survived by his four children. The will makes pre-residuary cash bequests of $45,000.00 to each of the children. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to petitioner in July 2004.

A Nassau County Estate lawyer said that Petitioner originally filed a First and Final Accounting of his proceedings covering the period May 2004 through January 2008. Thereafter, he filed a First Interim Account of the Estate of the decedent. This document covers the period from May 2004 to January 2008, the same period covered by the First and Final Accounting. The Interim Account was verified by Petitioner in February 2009, nearly one year after the First and Final Account.

A New York County Will Lawyer said the brother filed objections to the accounting. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent made a loan to the brother. In addition, the parties acknowledged that petitioner took an advance payment of commissions in the amount of $10,0000.00, without prior court order and repaid the sum of $10,000.00 to the estate.

Published on: May 18, 2014

Public Administrator Seeks Requests an Accounting and Attorneys Fees

by Stephen Bilkis

A New York Probate Lawyer said in this accounting proceeding are the issues of attorney fees and accountant fees. The Public Administrator also seeks approval of commissions. In addition, the Public Administrator asks for approval to disallow the claims of several hospitals, various healthcare corporations and two insurance corporations on the grounds that each claimant has failed to submit documentary evidence sufficient to substantiate any such claim and failed to complete and return the Affidavit of Claim provided to each claimant by the Public Administrator. The Public Administrator also asks for authorization to distribute the sum of $1,781.28 to the New York State Comptroller’s Office for the benefit of the unknown holder in due course of a money judgment entered by the First District Court of Nassau County in favor of a bank. Lastly, the Public Administrator asks to be released from the surety bond.

A New York Will Lawyer said the decedent man died intestate as a resident of Nassau County. Letters of Estate Administration were issued to the Public Administrator. The decedent was survived by three siblings. The summary statement shows charges to the accounting party of $30,141.29.

With respect to the issue of attorney fees, 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 an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate Court is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

Published on: May 18, 2014

Court Discusses Jurisdiction Issues

by Stephen Bilkis

A New York Probate Lawyer this probate proceeding, objections were filed and a jury demanded by the respondents. A motion is made by them to dismiss the petition before any trial on the merits upon the ground that the decedent was not a (domiciliary) resident of Nassau County at her death. They request that the proceeding be forwarded to New York County as the proper county of residence and also for the convenience of witnesses.

In support of the motion, there have been filed affidavits of respondents’ attorney and of respondent man along with copies of affidavits and exhibits which had been previously submitted to the court in connection with an application to revoke letters testamentary which had been issued to the proponent here on the estate of the decedent’s husband, who died on May 26, 1975.

A New York Will Lawyer in opposition to the motion various other facts are asserted to sustain proponent’s claim that Nassau County was the domiciliary residence of decedent and both attorneys have submitted memoranda in support of their respective positions. The court has examined them and will discuss below the various facts alleged by both sides.