Nassau

Published on: September 9, 2012

Court Decides Jurisdiction Issue

by Stephen Bilkis

This is a case being heard in the Second Department, Appellate Division, of the Supreme Court of the State of New York. In this case the objectants are appealing a decree made in the Surrogate’s Court of Queens County. A New York Probate Lawyer said the decree was made on the 9th of September, 1975 and adjudged that the decedent died as a resident of Queens County. A will was admitted to the court for probate and letters of testamentary were provided to the people named in the will as executors of the estate.

Case Background

The decedent, was the successful owner of a business complex that manufactured plastic products for the school stationery industry. The business was run in the city of Flushing located in Queens County. In 1965, he had one of his corporations rent an apartment for him to use in Miami Beach. He used the apartment from January of 1966 through 1969. When the lease for the apartment was made the decedent was living in a penthouse apartment located in Manhattan. He had created an apartment out of an upper space of one of his business buildings for convenience. He would stay in that apartment from time to time as well.

Published on: August 13, 2012

Trustee Requests Division of Trust

by Stephen Bilkis

The Facts:

On 31 December 1915, a testator died. On 31 March 1916, his will dated 20 October 1915 was admitted to probate. The Kings County Trust Company was granted letters testamentary on 31 March 1916 and letters of trusteeship on 24 October 1934. Under the will, the testator gave his residuary estate to his executor, in trust, to pay the net income arising therefrom to his wife, for and during her life. On 11 March 1959, the testator’s wife died. The will provides that upon the wife’s death, the said trust is to terminate, and the corpus thereof is to go and that the testator gives, devises and bequeaths the same, in equal shares, among his then surviving nephews and nieces, and the issue of any deceased nephew or niece (except issue of one niece), such issue taking in equal shares the share their parent would have taken if living. According to the will, it is the testator’s intention not to make the issue of the lone niece beneficiaries under his will.

Thereafter, the trustee brought the instant proceeding for the judicial settlement of its account. The trustee has requested in its petition that the Court find and determine that, in accordance with the intent of said decedent, as set forth in the will, the net distributable principal of the trust, now terminated, is primarily divisible into four equal major shares, one each for the lawful issue living at such termination and who represent decedent’s deceased nephews and nieces, the issue of each said deceased nephew and niece, respectively, to receive, in equal sub-shares, per stirpes, the equal major share which the deceased nephew or niece whom they represent would have taken, if living; and direct distribution accordingly.

Published on: August 11, 2012

Court Looks at Disposition of Decedent’s Gifts

by Stephen Bilkis

The Facts of the Case:

On 19 December 1947, a woman died. She was a resident of the Village of Millbrook, Dutchess County, New York. On 18 February 1948, her last Will and Testament was duly admitted to probate by decree of the Dutchess County Surrogate. Under the said will, after making certain specific devises, the testatrix, in paragraphs Fifth and Sixth of her said will, provided that:

Fifth: “I give, bequeath and devise to my executors hereinafter named all the rest, residue and remainder of my property including my house on Elm Drive, Millbrook, N. Y., to be held by them in trust for my brother, Pleasant Valley, N. Y., they to invest and reinvest the same and pay the income therefrom to him for as long as he lives. A New York Probate Lawyer said a portion of the principal may also be used for the support and maintenance of my said brother if deemed necessary in the sole judgment of my said executors and trustees.”

Published on: August 8, 2012

Petitioner Objects to Jurisdiction

by Stephen Bilkis

This is a matter concerning the last will and testament of the deceased Kate Freeman Clark. The case is being heard in the Surrogates Court of Suffolk County.

Motion

The motion that is before the court is to have the probate proceeding in this court dismissed and surrendered to the Chancery Court of Marshal County in the state of Mississippi. The motion asks for this court to give up its jurisdiction in the case. The Surrogate Court of Suffolk County took jurisdiction in this case under section 45 of Subdivision 3 as the decedent left a considerable amount of personal property within this county.

Published on: August 1, 2012

An Estate Administrator Seeks to Bar Property Transfer

by Stephen Bilkis

A deceased wife, who owned a property at Brooklyn, has taken sole title as an occupant by the entirety following the death of her husband. The day after the death of the wife, a woman performed a deed whereby she allegedly conveyed, as the estate administrator and titled the property to herself as recipient. The woman performed a mortgage on the property in favor of a financial institution to secure a loan in the amount of $250,000.00. Consequently, the woman again performed a mortgage on the property in favor of a mortgage company to secure a loan in the amount of $340,000.00. According to the settlement, the mortgage transaction proceeds totaling $251,237.66 were used to pay off the prior financial institution’s mortgage. A New York Probate Lawyer said the approval of the financial institution’s mortgage was then recorded.

The complainant, a mortgage company, issued an approval of its $340,000.00 mortgage, apparently in error. The approval of the complainant’s mortgage was then recorded. Afterwards, the complainant filed a notice of pendency on the property and initiated the instant action to vacate the approval of mortgage and to restore its mortgage lien to its priority position.

Consequently, another woman claiming to be the administrator the estate (estate administration) moved for an order to cancel the notice of pendency, permanently barring as a lien and discharging of record to a certain mortgage on the property. The woman commenced an action against the first administrator to vacate and discharge of record the deed allegedly conveying title to the first administrator. In her complaint, she alleged that she was the sister and next of kin of the deceased wife and her interest in the property accrued upon the death of her sister. In addition, no will of the deceased wife has been probated in Kings County or elsewhere. She alleged that the first administrator had no power to convey the property of her deceased sister’s assets and the deed should therefore be nullified and discharged of record.

Published on: July 24, 2012

Court Decides Payment of Estate Taxes

by Stephen Bilkis

A woman died and was survived by her five children. Her will, dated September 1, 2006 was admitted for probate on July 2, 2010 and letters of estate administration was issued to one of her children. The Will established a credit shelter trust for her husband, with remainder to her children. It left the rest, residue and remainder of her estate to her husband outright. Her husband predeceased her and she provided in the Will that if her husband predeceased her, she will left all the rest, residue and remainder of her properties, real, personal and mixed and wherever situated to her elder daughter. All the rest and remainder are to be equally divided among her children.

A New York Probate Lawyer said the estate is sufficiently large to generate a New York State estate tax. The will provides that all estate, inheritance, transfer, succession or other similar taxes shall be payable out of the residuary of the estate. The executor asks that the Court construe the gift to real property as a pre-residuary gift and the remainder clause of the Will as the residuary estate. The executor brings the construction proceeding, since he claims that not all of the residuary beneficiaries agree with his interpretation.

The Will in question directs that the payment of estate taxes be paid from the residuary estate. The Will contest claims that the Will contains two residuary clauses. Westchester County Probate Lawyer said the executor asks the Court to construe one of the residuary clauses as the true residuary estate. The effect will be that all estate taxes will be apportioned among the beneficiaries of the residuary clause and the devise of real property under the other residuary clause will pass to the devisee free of New York estate taxes. No objections have been filed to the petition for a construction, although the executor states that not all of his siblings agree with his interpretation.

Published on: July 23, 2012

Court Decides Guardian Ad Litem Fee

by Stephen Bilkis

This case involves the will of Josephine H. Kempisty who is deceased. The case is a probate proceeding being held in the Surrogates Court of the State of New York in Nassau County.

Current Issue

This probate proceeding is a review of a settlement stipulation that was negotiated and crafted by the guardian ad litem that was appointed as a representative of Regina Karasinski, the sister of the decedent.

Published on: July 15, 2012

Court Decides if Surrogates Court Abused its DIscretion

by Stephen Bilkis

The Facts:

The Respondent found among the decedent’s effects a purported will signed by the decedent but with the signatures of the witnesses torn off and missing. The respondent claims that the attorney whose name appears on the back of the will does not remember the alleged will or attending on the execution of any will by the decedent. Had the decedent died intestate, her sole heir would be her sister, a Finnish citizen who resides in Finland and who intends to file a will contest.

Under the will, the appellant was named as the executor and sole beneficiary in the will. When the appellant learned about the will, his attorney visited the respondent’s office and requested that the will be filed forthwith as required by law.

Published on: July 9, 2012

Court Says Larger Estate Doesnt Justify Larger Fees

by Stephen Bilkis

A woman resident died on February 15, 2009, leaving a last will and testament dated June 28, 2007. She was survived by 19 statutory heirs, including four siblings and the 15 children of four predeceased siblings.

The last will and testament leaves all of the woman’s property in three equal shares, two of which pass to the woman’s sisters, the elder sister and younger sister. The will directs that the third equal share be paid over to the woman’s niece, who is the nominated executor and the petitioner. It makes no mention of the woman’s third surviving sister who suffers from Alzheimer’s disease. A New York Probate Lawyer said waivers of citation were filed on behalf of 15 heirs, and jurisdiction was obtained over the remaining three interested parties, including the third sister. None of the heirs raised will contests. Preliminary letters were issued to the petitioner on May 19, 2009 and the letters have been extended upon application.

The court appointed guardian on behalf of the third sister is a guardian for incompetent persons. His report reflects that the probate estate was valued at approximately $570,000.00 and that there were non-testamentary assets of $292,000.00, including $200,000.00 held in joint accounts which named the petitioner as the joint tenant. The guardian ad litem also discovered that the petitioner had established the joint accounts using a power of attorney executed by the woman. He further learned that the last will had been prepared on the basis of telephoned instructions from the petitioner to an attorney, and that the will execution had not been supervised by an attorney. Additionally, based upon information uncovered by the guardian ad litem, which included medical records, serious questions were raised concerning the woman’s competency at the time the will was executed.

Published on: July 5, 2012

Petioner for Estate Claims Lawyer Misappropriated Funds

by Stephen Bilkis

Sometime in 1985, the respondent was retained by a woman to probate the Last Will and Testament of her deceased mother. The respondent accepted the retainer with full knowledge that the Will would have to be probated in the Court (for estate administration or will contest; estate litigation) in which he was employed. Thereafter, the respondent failed to apply to the Chief Administrator of the Courts for permission to engage in the private practice of law with respect to the subject estate, as follows:

In May of 1985, the respondent acting as the attorney for the estate, filed a probate petition and other relevant papers in the Surrogate’s Court, Kings County, but, in doing so, concealed the fact that he was the attorney for the estate.

On 6 June 1985, the subject Will was admitted to probate and an administratrix was appointed. The respondent was paid the sum of $1,200 for his legal services.