Suffolk County

Published on: June 16, 2014

Wife Files Will Contest Action Over Real Property

by Stephen Bilkis

This action stems from plaintiff’s attempt to purchase certain real property, located at Bronx County (“subject property”), in August 2005, from four members of a family.

New York Probate Lawyers said one of the members, a lady, died testate in February 1986. Under the terms of her Will, her husband had a life interest in certain properties, but not the subject property, only access to its garage. Article Sixth of the Last Will and Testament provided that their son had a life income interest in the subject property which was to be held in Trust by Trustees. The son’s daughters were allowed to occupy the first floor and second floor, respectively, and, upon the son’s death, the subject property was to be transferred jointly to the daughters, decedent’s granddaughters. The Will also provided that, upon the husband’s death, the son would substitute as Co-Executor and Co-Trustee in his place. The other Co-Executor and Co-Trustee attorney was never a party to the sale of the subject property. Further, the husband and the lawyer never obtained Letters of Co-Trusteeship for the Article Sixth Trust, and only the husband took action as an unauthorized Trustee with regards to the subject property.

A Bronx Conty Probate attorney said that Probate Petition and Notice of Probate were filed with the Surrogate’s Court in April 1988, naming the husband and the lawyer as Co-Executors and Co-Trustees. It also requested that Letters of Testamentary be issued to them and that Letters of Trusteeship be issued to them under the Article Third and to the lawyer under the Article Eleventh. Thereafter, the Surrogate’s Court issued Letters of Co-Testamentary and Co-Trusteeship to the Petitioners. However, the Letters of Trusteeship were limited to Articles Third and Eleventh Trusts. The Surrogate’s Court provided a letter to the GAL stating that no application for Letters of Trusteeship was issued under Article Sixth of the Will.

Published on: May 25, 2014

Administrator Moves to Dismiss Petition by Two Creditors

by Stephen Bilkis

In this miscellaneous proceeding, the respondent, administrator de bonis non, moves to dismiss the petition by two alleged creditors for revocation of his letters pursuant to CPLR 3211 (a) (2) and (3).

A New York Probate Lawyer said that the decedent died in April 1939, intestate. The decedent was the writer of some classic songs. He was survived by his wife and his father. Pursuant to the law of intestacy applicable at the time of the decedent’s death, the survivors were the decedent’s only distributees. In May 1939, the wife was appointed administrator of the decedent’s estate. She died in November 1973, a resident of New York County. She left a last will and testament which nominated executors. The first executor died in January 1983 leaving a will. Letters testamentary in his estate issued to his co-executor.

A New York Will Lawyer said the respondent, who alleges that he is a grandnephew of the decedent, petitioned for letters of administration de bonis non with respect to the decedent’s estate by petition dated September 21, 2009. The petition filed by him in the administration proceeding recites that the decedent had eight brothers and sisters who were deceased and that five nephews/nieces and seventeen great-nephews/great-nieces “were surviving.” Nicholas’ petition for letters of administration de bonis non was supported by waivers and consents of twenty-one of the distributees identified and citation issued to one alleged distributee who did not appear on the return date. According to his petition, the value of the assets in need of administration was $9,000.00.

Published on: May 10, 2014

Court Decide Issue of Estate Tax in Estate Case

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died on January 4, 2006, survived by two children, the petitioners herein. A purported will dated July 16, 2003 and codicils dated September 29, 2004 and April 5, 2005 (herein collectively referred to as the “purported will”) have been offered for probate by respondents who are nominated as executors thereunder. By order dated April 5, 2006, A New preliminary letters testamentary issued to respondents. The purported will bequeaths the residuary estate to The Sunshine Foundation. The Sunshine Foundation is a charitable organization which was founded by the decedent during her lifetime. The preliminary executors are also the trustees of The Sunshine Foundation.

A Nassau Estate Administration Lawyer said that, at the time of her death, the decedent owned a 1% general partnership interest and a 50% limited partnership interest in Hewlett Associates. Article TENTH of the purported will provides as follows with respect to the decedent’s limited partnership interest in Hewlett Associates: “TENTH: If at the time of my death I own a limited partnership interest in Hewlett Associates, I direct that as soon after my death as may be practicable, my Executors (subject to the terms and conditions of the Partnership Agreement of Hewlett Associates) shall offer in writing (the “Offer”) to each of my children, the option to purchase for cash up to one-half (½) of said limited partnership interest that I may own at my death, at its value as finally fixed and determined for federal estate tax purposes after independent appraisal. If either such child desires to exercise his or her option to purchase said limited partnership interest, he or she shall notify the Executors in writing by certified mail, return receipt requested, within fifteen (15) days after the date of the Offer that he or she exercises his or her option to purchase said limited partnership interest. The closing of the purchase of said limited interest shall occur within sixty (60) days after the date of the Offer at a place designated by the Executors. If either of my said children shall not exercise his or her option to purchase all of his or her portion of said limited partnership interest, the other child may purchase the remaining portion, subject to the same terms and conditions set forth in this Article TENTH hereof.”

A Westchester County Will Lawyer said the decedent also created a revocable trust, under an agreement dated July 16, 2003, between herself as grantor and herself, respondents, as trustees. The trust provides that upon the grantor’s death, the remaining trust principal is to be paid over to The Sunshine Foundation. The decedent’s husband, died on May 4, 1990, leaving a will dated May 26, 1982, which was admitted to probate by this court on May 29, 1990. Under Article THIRD of the decedent’s husband will, a marital deduction trust was created for the benefit of his wife.

Published on: May 1, 2014

Court Decides if Objections to Guardian Ad Litem Report Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, in this probate proceeding, the decedent was survived by her husband and her three adult children. The propounded instrument nominates all three sons as co-executors and bequeaths the entire estate to them, to the exclusion of her husband. The decedent’s husband is a person under disability and a guardian ad litem was appointed to represent his interests in this proceeding. Although no objections were filed, settlement negotiations between the guardian ad litem and the three brothers proceeded for some time without success. Ultimately, the guardian ad litem filed his report wherein he indicates that he has no objection to the will’s admission to probate, but seeks the court’s permission to file a notice of election on behalf of his ward. He also opines that due to the hostility displayed by the brothers against one another, the best interests of the estate administration would be served by the appointment of an independent party to administer the estate.

A New York Will Lawyer said that, the third son has not filed any objection to the recommendations made by the guardian ad litem. The court notes that he has been living in the decedent’s former residence at least since the time of the decedent’s death, and by his own admission has been living there without either heat or electricity for many months. His suitability as a fiduciary is therefore greatly suspect.

A Westchester County Probate Lawyers said that, the first son, an attorney, has filed objections to the report of the guardian ad litem in which he threatens to immediately commence a Supreme Court action to block the appointment of an independent fiduciary, asserting he will “not stand idly by while some two-bit money hungry shyster is appointed to serve as Executor instead of your affirmant and/or your brothers’.” He also threatens to move for a change of venue, fearing a conspiracy exists between the court and the second son’s attorney based on the fact that the latter’s attorney, as a law student, served as an intern in this court during the summer of 1996. The court also notes that at the last conference on July 21, 2010, the first son had to be removed from the court’s conference room by a court officer because of his extremely abusive and hostile manner directed toward his siblings and the second son’s attorney.

Published on: April 12, 2014

Court Rules on Action to Vacate Deed

by Stephen Bilkis

A New York Probate Lawyer this is an action to vacate a deed or, in the alternative, impress a constructive trust, which was originally commenced by RM, as executor of the estate of MM, in the Supreme Court of Nassau County. The proceeding was later on transferred to the court at bar by order dated 21 October 2005.

RM moved for summary judgment and the respondent, CS, cross-moved for summary judgment for a declaration that the transfer was a valid gift.

The particular events that took place are detailed below.

Published on: April 5, 2014

Objectant Moves for Disqualifying Counsel

by Stephen Bilkis

A New York Probate Lawyer said this probate proceeding, objectant moves for an order disqualifying counsel, the petitioner and nominated executor under the will of the decedent. The lawyer crossmoves for sanctions on for making a frivolous motion.

A New York Will Lawyer said that the motion was brought in connection with the contested probate of an instrument. The decedent died in January 2007, survived by three children. A petition for probate was filed and an SCPA 1404 examination was conducted. Objections were subsequently filed by herein objectant. In connection with the depositions and objections, the lawyer, the nominated executor, is represented by of counsel t. Depositions were concluded thereafter.

The motion for disqualification arises out of legal representation of the Company, which has four shareholders who each own 25% of the corporation. The shareholders are objectant, her husband, her brother, and brother’s wife. In 2000, the company commenced two actions one of which, against the brother, remains open. The company is now in bankruptcy proceedings. Objectant seeks disqualification as counsel to executor in the probate proceeding on the grounds that they cannot represent executor, whose interests are adverse to the interests of its former client, objectant.

Published on: March 25, 2014

Court Hears Case Regarding Validity of Will

by Stephen Bilkis

A New York Probate Lawyer said a woman died at the age of 91 and was survived by five nieces and nephews, who are the children of her two predeceased brothers. She left no other successor.

The daughter of the woman’s niece offered for probate a document as the woman’s last will and testament. The four other successors also filed waivers and consents to the probate of the proposed document. Preliminary letters testamentary were then issued.

A New York Will Lawyer said the witnesses of the document were subsequently examined. The first witness is also the attorney-draftsman of the proposed document. Afterward, the other grandniece filed an objection to the probate and demand for a jury trial.

Published on: March 21, 2014

Petitioner Alleges Undue Influence Regarding Will Execution

by Stephen Bilkis

A New York Probate Lawyer said that, in this contested probate proceeding, the proponent, the daughter of the decedent, moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument dated June 25, 2007 to probate. The objectant, who is the son of the decedent, cross-moves for summary judgment denying probate to the propounded will dated June 25, 2007.

A New York Will Lawyer said the decedent, died on August 2, 2008, survived by four children. The decedent’s wife, predeceased the decedent, as did his daughter. The will offered for probate provides a $25,000.00 bequest to his son; the remaining amount of a private mortgage held by decedent for property located at 225 Hillside Avenue, Douglaston, New York is to be divided evenly among his daughters and the residuary is to be divided evenly among them. The will nominates the proponent as executor.

A Westchester County Probate Lawyers said that, the objectant has interposed the following objections to the propounded instrument: “1. the instrument propounded is not the last will and testament of the decedent. 2. The instrument is not the last will and testament of the decedent in that the signature affixed thereto, alleged to be the signature of decedent, is not, in fact, decedent’s signature. 3. The instrument offered for probate was not duly executed by the decedent in that he did not affix his signature at the end thereof, nor was such signature made by the decedent in the presence of each of the attesting witnesses, or acknowledged by him to have been made, to each of the attesting witnesses, nor did the decedent declare the instrument to be his last will, nor did at least two attesting witnesses each sign their names to said instrument as a witness at the end thereof at the request of the decedent and in his presence. 4. The instrument offered for probate was not duly executed by the decedent in that he did not publish the same as her will in the presence of the witnesses whose names are subscribed thereto and that the said alleged witnesses did not sign as witnesses in his presence or in the presence of each other. 5. The instrument offered for probate was not freely and voluntarily made by the decedent. Upon information and belief, the instrument, and the signature thereto, was obtained and procured by fraud, duress and/or undue influence practiced upon the decedent by the proponent or by other persons acting in concert or privity with her whose names are presently unknown to respondent. 6. That on the 25th day of June, 2007, the said decedent, was not of sound mind or memory and was not mentally capable of making a will. 7. Said instrument purported to be the last will and testament of the decedent, was revoked, because decedent executed a second original will on the same day he executed the instrument being offered in this probate proceeding, and only said instrument has been produced and offered for probate.”

Published on: March 16, 2014

Court Discusses Reasonable Attorney’s Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, submitted for decision in this accounting proceeding are the issues of (i) attorney’s fees; (ii) accountant’s fees; and (iii) commissions. The decedent, died on February 26, 1996, a resident of Nassau County, leaving a will dated March 9, 1984. The will was admitted to probate by decree dated May 18, 2004, and letters of administration issued to the Public Administrator on the same date. The summary statement shows charges to the accounting party of $289,650.33. This is the Public Administrator’s first and final accounting. The decedent’s will, after the payment of a $2,000.00 bequest to Mercy Hospital, Rockville Centre, New York, directs that the decedent’s residuary estate be paid to the Diabetes Association of New York, Inc. The Attorney General of the State of New York has appeared in this proceeding.

The issue in this case is whether the accounting matters in this probate proceeding should be granted.

A New York Will Lawyer said with respect to the issue of attorneys’ 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 is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

Published on: March 14, 2014

Court Hears Case Regarding Probate with Foreclosure Involved

by Stephen Bilkis

In an action transferred to the court from Supreme Court, Nassau County, one of several defendants, a Home Loan corporation, moves the court for an order dismissing the complaint against it. Plaintiffs opposed such motion and cross-move for summary judgment dismissing the answer, or, in the alternative, striking its fourth and seventh affirmative defenses.

A New York Probate Lawyer said that this action emanates from a foreclosure proceeding involving property located at Hempstead, New York. That property was owned by decedent, who died intestate in July 1986. Her brother administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that he was the sole distributee and that the subject property vested in him immediately upon his sister’s death.

A New York Will Lawyer said the distribute brother then died testate in June 1994. Herein petitioner was appointed the voluntary administrator of the brother’s estate. The court’s file contains original will which devises and bequeaths all of his property to his cousin. The latter died in August 2000. There was no deed executed from the estate of the decedent sister to the brother, nor was there a deed from the estate of the brother to the petitioner. Although the brother’s original will was filed in the court by petitioner incident to the voluntary administration of the estate of the brother, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the petitioner, the administrators of his estate, and claim to be his only distributees.