Long Island

Published on: March 28, 2012

probate

by Stephen Bilkis

A husband and wife were American citizens domiciled in Israel. The wife executed a will on January 12, 1987 and died on February 25, 1991 in Israel. The husband executed a will on January 14, 1988 died April 11, 1991 also in Israel.

The wife’s will provided that her entire estate will be left to her husband. She also provided that if her husband died before her, then her estate will be executed by her eldest daughter. The estate will then be equally shared by her eldest and middle daughter. Her youngest daughter will only receive $1.

The husband’s will made his wife and his eldest daughter his sole distributees. The husband’s will was probated in Israel in 1991.

Published on: March 26, 2012

Estate Executor Brings Action for Lack of Payment

by Stephen Bilkis

This is not really estate litigation as it is a case involving the commission/fees of a person who was assigned to perform the accounting of the wealth of a decedent. It all started when a wealthy individual commissioned a lawyer-friend to write his will and named the said lawyer together with another close friend as executors of the properties and money left once he is gone. The rich man died at the age of 91 and survived by his wife. He had by that time amassed a huge amount of money and properties. The testator bequeathed to his widow their home and a $5M trust fund. When all the bequeaths for family and friends were satisfied, he instructed in the will to give the rest of his wealth to charity naming in particular a school, a hospital and a foundation.

In the will, there was a provision that the executors will be entitled to a payment of $400,000 each and this is meant to cover the work that is involved in carrying their duties as such. The executors entered in the performance of their duties by filing and requesting for letters testamentary from the court. A New York Probate Lawyer said the court granted the request and the executors started with their duties. One of the executor, a close friend of the testator realized that the job involved will require more than the usual. This is because of the vastness of the wealth left by the decedent which was around $250M and the complexities involved in process of estate accounting of the various bequeaths stated in the will as well as the grants given to various organizations.

In view of this, the said executor filed a summary proceeding in the court to request that his fees/commissions be increased from the originally stated $400,000 stated in the will, to the amount of $5M which is based on statutory provisions. He later on reduced his claim to a little over $2M. The beneficiaries timely opposed the motion and filed their opposition thereto arguing that since the will specifically stated the mounts that will be paid to the executors once the probate proceedings start, the same should be given effect. They further contended that since the executor did not question the provision of the will concerning the fees to be paid to them, that he is now estopped from questioning the same. Long Island Probate Lawyers said they also noted that there was even a proviso in the will that should the assigned executors find the task too difficult for them, that a company be made the executor to take their place.

Published on: March 24, 2012

Court Determines Jurisdiction of Will between Florida and NY

by Stephen Bilkis

A woman died in Florida on January 17, 2985. She had assets in Florida and New York. Her will was drafted and executed in New York under the supervision of her New York lawyer who is also the named executor in her will. He is the one who petitioned the Surrogate’s Court of New York for the probate of his client’s will.

The testator bequeathed to her siblings half of the estate and the remaining half was bequeathed to the legal heirs of the testator in accordance with the laws of descent and distribution of New York.

The testator’s lawyer at first wrote to the Surrogate’s Court stating his opinion that the testator has changed her domicile from New York to Florida. Later, he changed his mind and filed this application for probate in the Surrogate’s Court of New York. A New York Probate Lawyer said the heirs at law filed a similar action for probate of the will in Florida. They assert that the testator was domiciled in Florida. The testator’s brother filed the petition and asked that he be named as executor because the testator’s lawyer is ineligible for appointment as executor in Florida as he was not a resident of Florida.

Published on: March 19, 2012

Court Determines Distribution of a Trust and Will Assets

by Stephen Bilkis

In 1935, a trust fund was created by a mother in favour of her son which provides among others that in the event of the death of her son, the trust shall be divided in 6 equal parts and one of which shall be held in trust for her grandson. The trust also stated that should the grandson die, the trustee should distribute the remainder of the funds according to the will of the said grandson or the laws of intestacy should there be no will executed by the latter in favour of his heirs. The trust agreement was entered into between the mother and a trust company in New York which was also the domicile of the mother at that time.

The son who was the original beneficiary, died in 1962 while the grandson died in California in 1965 survived by his widow and a daughter as well as 5 children coming from the first marriage. The grandson had a will and it was admitted to probate in California since it was his domiciliary. The will of the grandson specifically directed that all his remaining trust fund be further divided into two trusts for the benefit of his spouse and daughter with a proviso that the trust for the daughter be terminated 21 years after the last survivor of his wife, his daughter, and the children of his daughter who were living at the time of his death, has died.

A New York Probate Lawyer said the original trustee in New York commenced a proceeding for the final accounting and settlement of the trust intended for the grandson. The executor of the grandson’s estate which was in California instituted a separate proceeding involving the issue of heirship at the Superior Court of California. The executor claimed that the will executed by the grandson should be construed in a manner that the trust should be terminated upon the death of the grandson’s daughter. The New York court from which the final accounting and settlement of the trust was filed, decided to hold further proceedings pending the determination of the California Superior Court of the issues brought to its attention.

Published on: March 15, 2012

Supreme Court Decides 5 Will Contest Cases

by Stephen Bilkis

This is a decision of the Supreme Court deciding jointly five cases where despite the existence of will that can be admitted into probate, the parties who could be beneficiaries under these wills decided to ask instead for letters of administration. The surrogate courts, in its discretion, thinking it wiser to distribute the estate in accordance with the rules of intestacy, denied the probate of the will and issued letters of administration to the beneficiaries of the estate who applied for the letters of administration.

Letters of administration are requested for when a deceased person left no valid will. It is issued only in cases of intestacy or when a will requested to be admitted into probate is found to be invalid. In each of these cases, there is a will but the requests for letters of administration were granted just the same.

The Court has ruled that in these five cases, the Surrogate Courts did not abuse their discretion. A New York Probate Lawyer said that in all of these cases, none of the beneficiaries, legatees or distributees were willing to proceed to probate seeing as the estates to be disposed of under the probated will were all small. Probate proceedings will so diminish the value of the estates that there will be nothing to distribute after probate. So the Court upheld the Surrogate Courts’ decision to issue letters of administration.

Published on: March 12, 2012

Will Contest Involving Several Properties

by Stephen Bilkis

This is a will contest involving several properties. One of the parties is Mrs. A, the wife of the decedent, the others are the two named preliminary executors identified in the will, the guardian ad litem of the minor child of the decedent, and lastly Mrs. B, the other wife of the testator. Both women claiming to be the wife of the decedent contested the status of the other and it was not clear as to what decision was made by the Russian court where the dispute was filed.

A New York Probate Lawyer said the court in this case is faced on one hand by a miscellaneous proceeding and on the other by the issues surrounding the probate of the will of the decedent. In the miscellaneous proceeding, Mrs. A filed a motion to restrain the directors and officers of corporation owned by the decedent from selling the properties of the said corporation and also for the granting of limited letters of administration to her by the court. The executors who were at odds with her also moved for the authority to sell the contested property of the company. In this regard, Mrs. A filed a cross-motion asking for several relief related to the corporation as well as for the distribution of the properties as directed by the will of the decedent. In the application for the settlement of the properties of the decedent in the court, Mrs. A also contested the assignment of the executors. The preliminary executors filed a motion in this regard and moved that the objections of Mrs. A regarding their assignment be dismissed.

Oral arguments were received by the court from both parties for the miscellaneous proceedings and after deliberations, the court lifted the TRO and allowed the executors to sell one of the properties owned by the corporation and to start the process for the sale of a piece of real estate property also owned by the corporation. New York City Probate Lawyers said Mrs. A vehemently objected to the sale of the real estate property and a number of conferences were made to settle the differences between the parties. Though there was a settlement agreed upon between the parties, the same was not properly signed and the preliminary executors later on told the court that the property has a buyer and the same is ready for sale. The court gave the executors the permission to sell the contested property.

Published on: March 11, 2012

Court Rules on Will Contest Between Close Friends

by Stephen Bilkis

This is a will contest involving not relatives but unrelated parties. The case stemmed from the will submitted for probate. The will that was executed by the decedent gave a very substantial amount to an alleged very close friend. Prior to this, several wills were also executed by the decedent and each time, the share of that special friend grew bigger in the will. The decedent came from a wealthy family and inherited a lot of money and businesses together with his two brothers. The business that they inherited was managed by his brother while the decedent did not want to venture in business and just enjoyed the share that he has in the family business managed by his brother. The other brother of the decedent was an invalid and therefore could not join in the management of the business and also relied on the other brother for the management of the affairs of the said business.

While alive, the decedent found a person who became his very close friend and confidant. They lived together, toured together, lived a lavish lifestyle together all at the expense of the decedent. Several business ventures were started at the behest of the special friend using the money of the decedent but none of the said business made money. During the course of the lifetime of the decedent when they were together, the special friend controlled the affairs of the decedent and made decisions apparently with the permission of the decedent.

A New York Probate Lawyer said the special friend during this time tried to be close to the family of the decedent with the brother in particular who manages the business but to no avail. He was not able to earn the good graces of the brothers of the decedent and this disappointed him as evidenced by letters that he made to the decedent and presented to the court during the proceedings.

Published on: March 6, 2012

Court Rules on Will Contest between Brothers

by Stephen Bilkis

A testator in her lifetime made a will. Her husband and three children outlived her. The will was brought to a probate court for legal procedure. Named in the instrument were the three adult children as co-executor with full power over the estate of the decedent. Not mentioned in the will was the name of her living disabled husband. After a thorough study of the contested will, the court found that the interest of the physically impaired husband needed to be taken care of. Thereby the court appointed a guardian ad litem to make necessary action to protect the interest of the ward.

The court appointee filed his report wherein he indicated that he had no objection to the will subject of probate proceeding. He mentioned in his report the unfriendly action of the three adult children of the decedent. He was hopeful that the best interest of the estate would be served by an appointment of an independent part to administer the estate under litigation.

One of the adult children did not object the contents of the recommendation. Suffolk County Probate Lawyers said the mentioned beneficiary son had been living in the decedent’s residence since the time of the testator’s death. He maintained the tear and wear of the dwelling place even if heat and electricity were brought to an untimely end. He believed that his action toward the care of the decedent’s dwelling should be recognized by the probate court and assigned him a letter testamentary as the suited fiduciary of his mother’s bounty.

Published on: March 3, 2012

Court Addresses Executor Fee Dispute

by Stephen Bilkis

A man from New York City executed a Will and its appendices and named a German Catholic Church his principal beneficiary in his last will and testament. The Will was challenged by the executors of a prior will executed in 1972. The appellant firm that represented the deceased man appealed an order from the Court that denied the appellant firm’s motion to dismiss the answer of the executor respondents of a prior Will. The executors of the prior Will were a bank and its legal firm. After an extensive litigation, the parties entered into a broad settlement agreement, pursuant to which the church received $3,000,000 together with a half-interest in a trust comprising the residuary property. The terms were incorporated into a decree.

The dispute arises out of the appellant firm’s application to fix its fee for legal services rendered to the preliminary executors of the Will. The executors of the prior will opposed the award of any fees on the grounds that the appellant firm knowingly presented an invalid Will and consequently committed other alleged wrongdoing. The appellant firm sought to dismiss the answer, asserting theories of inconsistency, bringing out matters already resolved and affirmative defense. The appellant firm further relied on the pronouncement in the court’s decree, to the effect that it appeared to the court that legitimate issues have been raised as to which of the Wills should be admitted for probate and that the compromise is made in good faith in the context of a legitimate will contest. The pronouncement is fair to the deceased in light of the circumstances and avoids any further litigation and unnecessary expense.

The court rejected the appellant firm’s arguments, reasoning that the question of bad faith on the part of the counsel, asserted in the answer, had not been litigated in the course of the proceedings and the quoted preamble did not constitute a finding of fact and that issues bearing on the award of fees were expressly reserved in both the settlement agreement and the decree until the instant application.

Published on: March 1, 2012

Court Decides Estate Litigation Case

by Stephen Bilkis

On 28 October 2006, the decedent died leaving a will dated 27 April 2006. The will nominates two (2) executors. Thereafter, one of the executors renounced his appointment. The decedent was survived by his two adult children.

Under the will, the entire residuary estate is left to the decedent’s companion and the decedent’s children are disinherited. One of the named executors (petitioner) now petitions for preliminary letters testamentary.

The primordial issue (in the estate litigation) is whether or not the petition for preliminary letters should be granted.