Articles Posted in Staten Island

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A New York Probate Lawyer said that, in this accounting by the Public Administrator of Nassau County as administrator of the decedent’s estate, the issue of kinship was referred to a referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence and the arguments made by the attorney for the claimants and the guardian ad litem representing the interests of missing and unknown persons. Also before the court is the settlement of the Public Administrator’s account for the period from August 26, 2005 to August 31, 2007, as brought current through August 31, 2009, as well as the legal fees of the guardian ad litem. The guardian ad litem has filed a report dated April 23, 2010 in which she states that she has no objections to the account as brought current and which she finds to be complete. In her report, the guardian ad litem also makes certain conclusions regarding kinship that are discussed below.

A New York Will Lawyer said that, the decedent died intestate, a resident and domiciliary of Nassau County, on August 26, 2005. Letters of administration issued to the Public Administrator on October 7, 2005. The account, as brought down to date, shows total charges of $621,723.92, total credits of $147,469.51 and a balance on hand of $474,254.41. Objections to the account were filed by two individuals who claim to be distributees of the decedent. They objected to the Public Administrator’s request to distribute the net estate to the New York State Comptroller for the benefit of the decedent’s unknown distributees and asked for a hearing to establish kinship.

The issue in this case is whether the claimant’s objection to the Public Administrator’s request to distribute the net estate to the New York State Comptroller for the benefit of the decedent’s unknown distributees and asked for a hearing to establish kinship should be granted.

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A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on December 28, 2010, survived by his sister, the petitioner; and by his brothers respondent and movant herein, and. The decedent’s last will and testament dated May 23, 2000 was offered for probate by the petitioner, who is named as the sole beneficiary of the decedent’s residuary estate, as well as the executrix in the propounded instrument. Preliminary letters testamentary issued to the petitioner by order of this court on January 13, 2011. Respondent and the movant have filed objections to probate of the will.

A New York Will Lawyer said that, the disputes presently before the court all relate to a supermarket, which was run by the decedent and his brother. The supermarket, located at 601 Old Country Road in Plainview, New York, is comprised of three separate closely held corporations: (1) 601 Corp., which operates the grocery and dry goods business within the supermarket, and was owned by decedent and his brother as equal 50% shareholders; (2) Captain Joe’s Fish Corp. (Captain Joe’s), which sells fish and seafood at John’s Farms, and was owned by decedent and his brother as equal 50% shareholders; and (3) BNC, which operates a meat market within John’s Farms, which was owned wholly by decedent.

A Nassau County Probate Lawyers said that, the decedent’s sister commenced a SCPA 2103 discovery proceeding against respondents and the CPA as the accountant for John’s Farms, in order to, inter alia, prevent the decedent’s brother interference with the operation of BNC and to compel him to turn over the cash receipts of BNC from the date of the decedent’s death to the present; to prevent him interference with the petitioner’s right to take part in the management of Captain Joe’s and 601 Corp. and to gain full access to the records of those corporations; to compel the brother to make available to the petitioner the books and records of the decedent, BNC, 601 Corp. and Captain Joe’s; and to compel the brother to turn over the computer and other items he took from the decedent’s home.

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A New York Probate Lawyer said that, petitioners are who are, respectively, the suspended co-executor and the temporary co-administrators of the Estate of the decedent (hereinafter the estate). Respondent is the suspended co-executor of the estate. Petitioners commenced these proceedings to remove respondent as co-executor and to surcharge him for his self-dealing with respect to an estate asset consisting of a partial interest in a limited partnership known as North Shore Mart. Petitioners appeal and respondent cross-appeals from an order of Monroe County Surrogate’s Court, which, following a reference of factual issues on respondent’s accounting, confirmed the report of the referee and made additional determinations on issues not addressed by the referee.

A New York Will Lawyer said that, insofar as pertinent to this appeal, the Surrogate ordered respondent to reconvey to the estate administration a 36.4285% interest in North Shore Mart; ordered that such reconveyance be in the nature of a limited partnership interest rather than a general partnership interest or tenancy in common; denied the estate’s request for reconveyance of an additional 6.0715% interest in the partnership; awarded the estate a judgment of $1,152,645.82 plus interest, representing (after offset) the estate’s interest (36.4285%) in amounts diverted by respondent from the partnership to himself and his wife; denied without prejudice the estate’s claim to recover tax benefits (for partnership losses) that the estate would have realized but for respondent’s misappropriation of its interest in the partnership; denied the estate’s request to recover for the unnecessary interest expense incurred by the partnership as a result of his diversion of partnership assets; deferred the estate’s request for an award of attorney’s and accountant’s fees; denied the estate’s request for an award of punitive damages; denied the estate’s request for costs and disbursements; and ordered respondent to pay one-half of the referee’s fees.

A Long Island Probate Lawyer said that, on appeal the estate contends that it is entitled to reconveyance of a 42.5% interest in North Shore Mart; that such reconveyance must be in the form of a general partnership interest or tenancy in common; that it is entitled to a judgment equal to 42.5% of amounts diverted from the partnership by respondent; that the estate is entitled to other amounts, including a proportionate share of interest paid as a result of unnecessary borrowing by the partnership and compensation for tax benefits the estate would have realized but for respondent’s misappropriation; and that it is entitled to additional relief, including attorney’s and accountant’s fees, punitive damages, referee’s fees, and costs and disbursements. On his cross appeal, Saul challenges the Surrogate’s award to the estate of a money judgment and of an interest in the partnership at its present value.

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A New York Probate Lawyer said that, in this uncontested probate proceeding, the court is asked to dispense with the filing of a bond by the nominated trustee due to a purported scrivener’s error in the will. The decedent died a resident of Nassau County on February 4, 2007. A will dated September 20, 2006 has been offered for probate by the nominated executor. The executor is the decedent’s husband. The decedent was also survived by two adult children, an adult grandchild and two minor grandchildren.

A New York Will Lawyer said that, Article FOURTH of the will creates a trust to be funded with the “exemption amount.” The trust terminates upon the executor’s death, and he has a limited testamentary power of appointment over the trust principal. If or to the extent that he fails to exercise the limited power of appointment, the remaining trust principal is payable to his 1993 Insurance Trust. The residuary estate is payable to him. The will nominates the husband as trustee and the decedent’s children as successor trustees.

Nassau County Probate Lawyers said the issue in this case is whether the executor husband can be dispense with the filing of a bond by the nominated trustee due to a purported scrivener’s error in the will.

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A New York Probate Lawyer said that, the decedent died on June 4, 1931, a resident of Nassau County. His will dated November 26, 1930 was admitted to probate by decree dated June 15, 1931. The will created a trust for the benefit of the beneficiary under Article ELEVENTH. Letters of trusteeship originally issued to. The beneficiary died on August 30, 1989, a resident of New York County, leaving a will and codicil which was admitted to probate by the Surrogate’s Court of New York County by decree dated October 6, 1989. At the time of her death, the trustees of the trust were the beneficiary and the Bank.

A New York Will Lawyer said that, pursuant to Subdivision A of Article ELEVENTH of the decedent’s will, the trust is to be administered and disposed of as follows: “A. If my said daughter shall survive me, to invest and from time to time reinvest said share and to collect the income thereof, and during the life of my said daughter apply the net income thereof to the use of my said daughter by payment thereof to her, and IN FURTHER TRUST upon the death of my said daughter to pay and distribute the principal of the trust estate so held to and among the lawful issue of my said daughter who shall survive my said daughter and the lawful issue of my said son, who shall survive my said daughter, in such amounts, equal or unequal, as my said daughter in her uncontrolled discretion may, by last will and testament duly admitted to probate and not otherwise, appoint, expressly granting to my said daughter the right in the exercise of such power of appointment to exclude wholly from participation therein any one or more of her issue and/or any one or more of the issue of my said son; provided, however, that my said daughter, by last will and testament duly admitted to probate and not otherwise, may on such terms and conditions as she may think fit appoint any part or parts of the principal of said trust estate to a trustee or trustees in trust for the use of any of the lawful issue of my said daughter born before my death and her surviving, or of any of the lawful issue of my said son born before my death and her surviving, during the life of the cestui que trust of each trust so created, or for such lesser period as she may think fit.”

A Staten Island Probate Lawyer said that, the decedent daughter was survived by her three children,. In accordance with the decedent’s exercise of her power of appointment, Chemical Bank divided the principal of the decedent trust into three equal shares and held one such share in separate further trust for each of her children. This is an accounting with respect to the sub-trust for the benefit of the child. A Nassau Estate Administration Lawyer said that, by decree dated April 6, 1992, was appointed to serve as co-trustee of the fist child sub-trust with Manhattan Bank (successor by merger to Chemical Bank). By order dated February 27, 2008, this court approved the resignation of the Bank, as co-trustee of the sub-trust for the first child and the appointment of the decedent. The presumptive remainder men of the sub-trust for the benefit of the first child/son, the decedent’s great-grandchildren, all of whom are adults. Citation issued to all of the presumptive remainder men, as a successor trustee of the sub-trust. None of them have appeared in this proceeding.

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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.

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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.

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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.

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A New York Probate Lawyer said that, this is a proceeding brought by the executor of the estate of her father, to determine the validity of a claim made by the Nassau County Department of Social Services against the estate for public assistance rendered to wife of the decedent, from June 10, 1996 to October 3, 2002, while he was still alive. The couples had two children, who is mentally retarded. On August 11, 1972, the decedent was shot four times in what the executor described as a “bungled mob” assassination attempt. According to newspaper articles, the gunman mistook the decedent and three others for the mobsters he intended to kill. The decedent suffered serious injuries that left him unable to work for the remainder of his life. He began receiving Social Security disability benefits in January 1976 and, also received a Worker’s Compensation award.

A New York Will Lawyer said that the, wife was diagnosed with Alzheimer’s disease in 1992. On December 22, 1995, the decedent, as attorney-in-fact for his wife, executed an “Assignment to Petition the Court for Support Pursuant to 18 NYCRR 360-3.2.” It states that, in consideration of the medical assistance and care provided and to be provided to the wife by the New York State and Nassau County Departments of Social Services, she assigned to the Nassau County Department of Social Services (DSS) “so much of her right, title and interest to petition the court for support from my legally responsible spouse.” The decedent as the wife’s spouse, executed a “Declaration of the Legally Responsible Relative” on January 4, 1996. It states, “I, declare that I refuse to make my income and/or resources available for the cost of necessary medical care and services for the Medicaid applicant/recipient listed above.”

A Staten Island Probate Lawyer said the wife began receiving Medicaid on June 10, 1996 when she was placed in a nursing home. The record before the court includes a “Medical Assistance Institutionalized Spouse Budget Worksheet,” which was signed on March 11, 1997 by a representative of DSS. The worksheet bears the date of March 12, 1997 and lists the date of application as April 18, 1996.

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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.

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