Manhattan

Published on: April 24, 2012

Court Rules on No Contest Provision of the Will

by Stephen Bilkis

This issue was brought to the court to extend the time to file objections in validation of the will and a motion for construction of the provision. This is concerning the legal proving of the will of a woman who died, leaving a taxable estate of almost two million dollars. The most recent will dated, two weeks before his death has been offered for validation by the appointed representative. However, the prior will has been filed with the court. Petitioner and several other interested parties have examined the witnesses. The court has extended the time for filing objections pending a decision on the construction issue.

A New York Probate Lawyer said the petitioner to the recent will, prays for a resolution that the no-contest provision does not apply to the other heirs, who include a foundation itself and a number of charities. The other organization supports the foundation’s position and has submitted an affidavit containing information that the no-contest provision is not directed to the charities. The woman’s grand-niece and other beneficiary have opposed the requested relief.

The recent will contains several gifts to individuals and charities of either specific dollar amounts, or items of tangible personal property, or a combination of both. New York City Probate Lawyers said in addition, the will sets up trust for her grand-niece and places another in trust for her sons. The grand-niece receives tangible personal effects and the house.

Published on: April 19, 2012

Court Decides Jurisidiction for US Citizen with Properties in South America

by Stephen Bilkis

A rich man died leaving several properties in Central America and two States in the U.S. Almost two and one-half years later, a petition was filed in the court of a U.S. State by the Country of the deceased man for the order which is alleged to have been destroyed after the man’s death. That petition contains the further allegation that the man was, at the time of his death, a resident of the Country from Central America. The petition was amended in which the petitioner set forth transactions and proceedings with U.S. State Tax Commission wherein the petitioner was advised of the Commission’s disagreement that the man had been a resident of the U.S. State. The petition was thereupon amended to read that the man, at the time of his death, was either a resident of the U.S. State or a resident of the Country from Central America.

The petition against the U.S. State was to dismiss their petition for the probate of the will on the grounds that the involved U.S. State court has no jurisdiction to entertain the proceeding and if it has jurisdiction, that it should decline, in its discretion, to exercise it. The Petitioner Country requests a hearing on the matter of the deceased person’s residence and the location of his property.

A New York Probate Lawyer said that tax Law requires that in every proceeding for original letters appointed by in the estate of a non-resident deceased person, the State Tax Commission must be cited as a necessary party. The section contains other provisions to protect the State’s interest with respect to the collection of any tax that might be payable. The petition herein having been amended so as to leave open the question of the man’s residence, the State Tax Commission is taking no active part in the process of the proceeding. It is obvious, therefore, that the amendment of the petition represents not so much a change of mind on petitioner’s part but rather an effort to avoid at this time unnecessary legal action.

Published on: April 15, 2012

Court Rules on Reasonable Attorney and Accountant’s Fees

by Stephen Bilkis

This case pertains to the accounting proceeding relative to attorneys fees, accountant’s fee and commissions.

In February 26, 1996, the decedent died leaving a will dated March 9, 1984 which was decreed on May 18, 2004 to which a letters of administration was issued to the Public Administrator on said date. The summary state shows charges to accounting party of P289,650.33 as the Public Administrator’s first and final accounting. The residuary estate under the will was directed to be paid to Diabetes Association of New York, Inc.

The court in its authority and discretion, considers a number of factors in evaluating legal services and other fees. These includes: the time spent, the complexity of the questions ivolved, the nature of the services provided, the amount of litigation required, the amounts involved and the benefit resulting from the execution of such services, the lawyer’s experience and reputation and the customary fee charge by the Bar for similar services. A New York Probate Lawyer said a legal fee must be imposed reasonably taking into consideration the valude of the estate. The attorney(s) services includes: 1) preparation and filing of the petition for temporary letters of adminstration and cross petition for probate and letters of administration together with the acocmpanying affidavits and rquiredancillary documents; (2) preparation and filing of the renunciation of nominated executor and multiple waivers of process and consent to probate for numerous distributees and legatees (3) obtaining the Public Administrator’s fiduciary bond; (4) review of known family information and research as to whereabouts of alleged distributees (5) preparation and filing of an affidavit of heirship (6) arranging for service of process of probate citations and preparation and filing of an affidavit requesting substituted service (7) preparation and filing of proposed probate decree (8) attendance at the probate citation return date (9) preparation of receipt, release and refunding agreement for the hospital, who is a legatee under decedent’s will and conversations with the administrative and legal personnel regarding same (10) preparation and filing of the Public Adminstrator’s final account and the petition for judicial settlement of account (11) arranging for service of accounting citation and ensuring adequate service of same to secure jurisdiciton over all interested parties (12) multiple telephone conferences and correspondence with various attorneys and the Public Administrator of Nassau County and the employees thereof. The said firm likewise handled the sale of the cooperative apartment and charge services in the amount of $1,500.00 for the said purpose.

Published on: April 12, 2012

Court Decides Will Contest

by Stephen Bilkis

A man died survived by his spouse. He left a will which then became the subject of a probate (will contest) proceeding. Certain documents were sought to be produced which then became the subject matter of the present case.

Two issues were raised during the estate litigation, to wit:

1. Whether or not the instruments sought were privileged matters between the widow and her attorney; and

Published on: April 11, 2012

Court Conducts an Accounting Proceeding

by Stephen Bilkis

Before the Nassau County Surrogate Court is the Public Administrator’s motion to dismiss the objections in a contested accounting proceeding.

The woman decedent, a resident and domiciliary of Nassau County, died testate. She was survived by her daughter and three sons.

Decedent executed a last will and testament bequeathing her residuary estate equally among her four children and appointed one of her son as executor. The son-executor filed a petition for probate of the will and for letters testamentary. Decedent’s daughter and executor were each represented by counsel while the other two sons appeared personally in the probate proceeding. The other children of the decedent objected to the appointment of the executor. The beneficiaries entered into a settlement, in open court, for the probate of the will and that they would appoint the Public Administrator as administrator of the estate. The will was admitted for probate and, at the same time, letters of administration were issued to the Public Administrator.

Published on: April 9, 2012

Court Determines if it has Subject Matter Jurisdiction

by Stephen Bilkis

On 28 December 1993, the decedent died. On 28 January1994, The decedent’s Last Will and Testament was admitted to probate (no will contest) and letters testamentary were issued.

The issue here (estate litigation) is whether or not an order consenting to a transfer to the Nassau County court of an action currently pending in Supreme Court, New York County is proper.

The respondent has argued that the Nassau County court lacks subject matter jurisdiction of the dispute and that it is not the proper venue for the case.

Published on: April 5, 2012

Petitioner Brings Will Contest Action

by Stephen Bilkis

A man executed a will in January 23, 1962. In this will the man made bequests of jewelry and personal property; devises of real property; and a trust to his widow. The value of the gifts and benefits he gave to her in the will amounted to $7,500,000.00.

He also made a bequest to his four daughters in the form of a trust amounting to $1,700,000. The four daughters were to share the trust.

He also made a bequest for each of his five sons in the form of individual trusts amounting to $1,450,000.00 each.

Published on: March 30, 2012

Court Determines Who Letters Testimentary Should Be Issued To

by Stephen Bilkis

On 14 December 2005, the decedent died leaving a will dated 13 September 2005 (the “2005 Will”) and a prior will dated 24 January 2003 (the “2003 Will”). She was survived by three (3) daughters. Under the 2003 will, two (2) of the decedent’s daughters are named as executor and successor executor. Under the 2005 will, one of the daughters named in the 2003 will is again named as executor.

To whom shall the letters testamentary be issued?

The rules state that the issuance of preliminary letters testamentary was to provide a form of letters to the named executor which would allow for the immediate administration of the estate (estate administration or estate litigation) when there may be a delay in probate (will contest). The purpose was to honor the testator’s preference regarding the appointment of a fiduciary, even on a temporary basis, and to reduce the possibility of frivolous pre-probate contests. Preliminary letters allow the estate administration to be expedited and proceed as close to normal as possible and prevent contests within a contest. Although a will may be offered for probate by persons other than the nominated executor, an application for preliminary letters may only be made by the executor named in the testator’s will. A person not named as an executor has no standing to seek preliminary letters. Moreover, where the application is made by one of several nominated executors, notice must be given to all persons who, pursuant to the terms of the will, have a right to letters testamentary equal to that of the petitioner. If any person has an equal right to letters, i.e., a named co-executor, such person may join in the application. Where process has issued, the issuance of preliminary letters is mandatory “upon due qualification”. If process has not yet issued, preliminary letters may issue in the discretion of the court upon due qualification.

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 21, 2012

Court Rules of Power of Surrogate

by Stephen Bilkis

A man appointed his wife and his daughter as executors of his estate. The bank was designated as the successor executor. In a supplement to his will, he removed his wife as executor and named his daughter as the sole executor and appointed the bank as the successor executor. Following the man’s death, a hearing was ultimately conducted in the Surrogate’s Court to determine whether the daughter’s initial letters of administration should be revoked and whether she was ineligible to be a permanent executor and trustee under her father’s will. The Surrogate decided that the daughter’s removal was justifiable and the court affirmed on the ground that the record supported a finding of inexcusable delay and the intentional refusal to obey the court’s direction. The court also affirmed the appointment of the bank as permanent executor and trustee. In the meantime, the wife who also died and her will were offered for probate in Westchester County.

The Surrogate court issued preliminary letters of administration to the bank being the nominated executor and trustee. Queens Probate Lawyers said the daughter intervened objections to the validation of the will. The law firm which had provided attorneys for the wife during her lifetime regarding the validation proceeding in her husband’s will was retained by the bank as its counsel in both properties.

By order to show cause, the bank applied for a ruling admitting the husband’s Will and its supplement, the letters of administration and trusteeship to validate. The daughter opposed the bank’s application and in a cross-motion, the daughter sought extensive relief which includes the disqualification of the bank from its appointment as executor of his father’s will and the prohibition of the subject law firm from acting as counsel to the bank and participating in the proceedings other than serving as witnesses. The bank objected to the daughter’s cross-motion, but the Surrogate, despite granting preliminary letters of administration to the bank, ruled that a hearing should be held in relation to the eligibility of the bank to be made as permanent executor and trustee. The Surrogate court also ruled that a hearing should be held to determine whether the law firm in question should be disqualified as the bank’s attorneys in the validation proceeding. However, a New York Probate Lawyer said it was an abuse of discretion for the Surrogate to require a hearing under the circumstances herein. The Surrogate directed, and the court affirmed, that the bank will be designated as permanent executor and trustee. The bank promptly complied with the directives of the Surrogate’s Court Procedure Act who dealt with the qualification of the executor. In addition, a proposed ruling and counter-ruling, and even the suggested the counter-ruling offered by the daughter which named the bank as the recipient of the letters of administration and trusteeship were submitted to the Surrogate’s Court. Indeed, the daughter failed to throw in any objection until the bank applied by means of the order to show cause for the issuance of the letters after the Surrogate had not acted on the ruling or counter-ruling. Yet, Manhattan Probate Lawyers said her papers do not allege any facts imposing that the bank be declared ineligible.