New York City

Published on: March 30, 2012

Courts Discuss Bond Provisin in Estate Documents

by Stephen Bilkis

On 4 February 2007, a resident of Nassau County died leaving a will dated 20 September 2006. She was survived by her two (2) children, a grandchild and two (2) minor grandchildren. Such will has been offered for probate by the nominated executor (decedent’s husband).

The will created a trust to be funded with the “exemption amount.” The trust shall terminate upon the death of the decedent’s husband who has a limited testamentary power of appointment over the trust principal. If or to the extent that the decedent’s husband failed to exercise the limited power of appointment, the remaining trust principal is payable to the decedent’s husband 1993 Insurance Trust. The residuary estate is then payable to the decedent’s husband. The decedent’s husband and the children are named under the will as trustee and successor trustees, respectively. Also, “no bond or other security shall be required of any Executor for the faithful performance of such person’s fiduciary duties in any capacity.” Thereafter, the attorney-draftsman submitted an affidavit and averred that he inadvertently used the word “Executor” instead of “fiduciary.” Apparently, the decedent’s prior will dated 2 April 1993, which contained one trust, dispensed with a bond in the case of any “fiduciary.”

In the instant case (estate litigation or estate administration) there is no will contest. However, 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.

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 29, 2012

Courts Decide Will Contest Regarding German vs. American Wills

by Stephen Bilkis

This proceeding is about the two last wills made in different states by a deceased woman. The petitioner in this appeal requests for the validation of the will executed in 1955 while the deceased was in New York County. The petitioner as the representative in administering the assets leaves the residuary estate to a New York charity. The deceased traveled to West Germany in 1965 and executed again a holographic will in 1967. The will provides that it revokes all prior wills. The woman died in Germany in 1968. The respondent cross-petitioner is the deceased’s post deceased brother and is the sole successor under the later will. The latter will was established in the court proceedings in West Germany in 1972. The respondent cross-petitioner moved for judgment without trial to dismiss the petition and to deny probate to the prior 1955 will. In addition, the respondent filed a petition for ancillary letters on the basis of the 1967 will.

The court rendered a temporary decision holding the motion for the judgment without proceeding in suspending a trial to allow a full opportunity for each part to present proof and cross-examine each other’s experts on German law. A New York Probate Lawyer said the facts of the case were set forth in that decision and will be presented when necessary. The trial was held upon the issues of whether the German courts issued a judgment or an administrative certificate, whether the document issued by the German court contains a final ruling under the law or merely a pronounced determination and whether a finding of German residency was essential to the establishment of the will in Germany.

The court found that the legal order was rendered by courts of record in Germany in the establishment of the 1967 holographic will of the deceased. In addition, the certificate of inheritance issued by the District Court in Germany constitutes a final decree and not merely a pronounce determination. Moreover, finding of German residency was necessary to the establishment of the 1967 will in Germany. On the basis of the recognized rules, the court gives full acknowledgment to the establishment of the 1967 will of the deceased in the German courts.

Published on: March 28, 2012

Court Rules on Will Jurisdiction Issue

by Stephen Bilkis

An American citizen domiciled in France died leaving behind bank accounts in New York worth less than $1,000.00, real properties worth a few hundred thousand dollars in France and almost a million dollars worth of money and personal property in Switzerland. At the time of his death he was married to a French national and they had one minor child. Prior to his death in 1972, the decedent executed a will sometime in 1970 in New York and this same will was presented for probate by two persons who were not main parties to the case. The New York will stated that half of the entire estate of the decedent must go to the wife and the other half should be held in trust in favour of the minor child. The will specifically directed that the same should be probated in New York.

It was also learned that aside from the will executed in New York, the decedent also executed a deed of donation which will specifically take effect upon his death. This deed of donation was executed in 1972, or 25 days before the death of the testator/Donor and in front of a notary public in France. The deed directed that all the estate of the testator be disposed and transferred in favour of the surviving spouse with a proviso that the minor child’s legitime be protected under French law. The deed of donation then is contrary to what the 1970 New York will provides.

Upon the death of the decedent, a proceeding was instituted in the court of New York for the disposition of the properties of the decedent according to the will executed in New York and at the same time a litigation is also pending and awaiting trial in France disputing the validity of the deed of donation. A New York Probate Lawyer said the proponents of the New York proceedings argued that the New York will should be given preference and that New York law should be applied in distributing the properties of the decedent. They also brought to the attention of the court that there was a pre-nuptial agreement between the spouses limiting the share of the wife to $10,000.00 in case of the husband’s death and that there was agreement between them that the laws of New York should be applied in the distribution of his estate.

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 25, 2012

Court Stays Estate Proceedings until Criminal Case is Resolved

by Stephen Bilkis

Three probate proceedings in the estate of the deceased woman moves for an order for a partial stay or a protective order directing that the surviving son’s obligations to respond to all discovery demands that have been served on him temporarily be stayed until related criminal charges pending against him are resolved. The Library and the Museum, two charitable beneficiaries under the wills of the deceased woman oppose the motion. The District Attorney moves for an order granting him the right to intervene in the proceedings and upon intervention, granting a stay of all proceedings pending the resolution of the criminal charges pending against the surviving son. The motion is opposed by the surviving son, the Library and the Museum. The Attorney General of the State moves for an order granting a stay of all proceedings or in the alternative, a stay of all discoveries except document discovery and setting a date for a conference.

A woman was survived by her only child. Three sets of paper writing claiming to be wills of the deceased woman were filed in court. The first paper writing is a will dated January 30, 2002, along with a first, second and third supplement. The second paper writing is a will dated February 2, 2001 with a sole supplement. The third paper is a will dated January 8, 1997, also with a sole supplement.

A New York Probate Lawyer said the trust bank filed a petition for the validation of the 1997 will. The surviving child of the deceased filed a petition for the validation of the 2002 will and the first two supplements only. He also filed a petition for the validation of the 1997 will.

Published on: March 24, 2012

Court Determines Case Filed by Executor

by Stephen Bilkis

This is the probate proceeding of a deceased man’s last will and the objection filed by the counsel of the executor of the estate on the request from the court. The counsel of the executor has objected to a request from the court’s accounting department for the payment of an additional fee of $625.00 upon the executor’s required filing of the inventory of his List of Assets. The additional payment was requested based upon the addition of the real property located in North Carolina of his completed form. The executor of the property excluded that asset from the gross value of the assets as reported on the validation petition when it was initially calculated. The form for the petition required that improved and unimproved real property be listed only if it is located in New York State.

The Uniform Rules for the filing of the inventory of List of Assets shows no basis for excluding non-New York real property from the assessment of the gross properties passing by will, except with respect to a proceeding for ancillary validation. The part of the rules stated that the attorney of record shall provide the court a list of assets compose of the gross property for tax purposes but separately listing the assets that were either owned by the deceased individually including those in which the deceased has partial interest, or were payable or transferrable to the properties of the deceased and those properties held in trust. Also to be listed separately are those properties over which the deceased had the power to designate to a beneficiary, jointly owned property, and all other non validation property of the deceased. The section specifically requires the collection of the additional fee upon the filing of the inventory list, a requirement clearly contemplated by the enabling the law.

In the event such list of assets is not filed, A New York Probate Lawyer said the court may refuse to issue certificates, or may revoke the letters and may refuse to issue new ones until the list has been filed and the fees have been paid as provided. Failure to voluntarily file the list of assets may also constitute grounds for disallowance of commissions or legal fees. In case any additional filing fees are due, they shall be paid to the court at the time of the submission of any of the documents described.

Published on: March 22, 2012

Court Determines Jurisdiction Question with French Will and Trust

by Stephen Bilkis

An American citizen who was a successful business man in New York got married to a French woman and thereafter bought a home in France where he lived together with his wife and daughter. Every now and then, he comes back to New York to look after some concerns about the business that he sold particularly because the said payment has not been fully paid. Whenever he was in New York, he would stay from time to time in a Flushing apartment which was especially provided to him by the corporation that he previously owned before selling it to his business partner.

It was also in New York that he executed a will in 1970 covering his estate and stated that the said will must be probated in the courts of New York when the proper time comes. Embodied in the will are provisions ceding to his wife all his personal properties and personal effects as well as a weekly allowance. The will also provided for an allowance to his brother which would come from the residuary trust. The daughter of the testator was also provided in the will and she was supposed to receive the income from a trust fund up to the time that she reaches the age of 35. He named as executor his long-time business partner for whom he sold his entire business interest in New York.

A New York Probate Lawyer said a few weeks before the death of the testator in 1972, he also executed before a French notary public, a deed of donation. Said deed of donation is in the form of inter vivos donation which will take effect upon the death of the donor. In the said Deed of Donation, he is leaving the entire estate administration and ownership to this wife subject to the condition that if there be children of the donor at the time of his death, then the wife as donee shall determine the right amount to be given to said children subject to the rules of the applicable law when that time comes.

Published on: March 20, 2012

Court Decides Jurisdiction Issue Regarding Will and Trust

by Stephen Bilkis

A man who was born and raised in Brooklyn died and survived by two grandchildren. For many years, the deceased and his wife lived in Florida where his granddaughter lived. At some point, he and his wife moved to Phoenix, Arizona where his grandson lived. They were living in Phoenix when the deceased man’s wife died. The deceased remained in Phoenix until he moved to New York in late September 2005.

While living in Phoenix, the deceased executed a will, which left his estate to the trustee. On the same day, he executed a trust agreement creating a revocable lifetime trust. Under the terms of the trust, the property passes to the grandson upon his grandfather’s death.

In 2005, the deceased called his sister and told her he wanted to return to Brooklyn to live with her. The sister and her daughter visited the deceased on September 27, 2005. At that time, the deceased was 95 years old and suffering from cardiac problems. The deceased asked his sister to take him back to Brooklyn to live with her.

Published on: March 15, 2012

Brother Left Out of Will Files Will Contest Action

by Stephen Bilkis

On December 1, 1988, a resident of Fulton County, 82 years of age (referred to as the “decedent”), died in Spartansburg, South Carolina. He was survived by a brother who is the only distribute. At exactly two weeks before the decedent’s death, he executed a last Will and Testament (referred to as “the will”) on November 17, 1988. The will excluded the brother but included two strangers, whom they are not related to by blood, who reside in South Carolina. The will was attested to before three witnesses, all of whom reside in South Carolina. Subsequently, by reason of the brother’s exclusion as an heir, the brother then objected to the probate of the will or made a will contest and demanded an examination of the attesting witnesses (a probate is the legal process of administering the estate or estate administration of a deceased person by resolving all claims and distributing the deceased person’s property under the valid will – source: Wikipedia). Thus, estate litigation ensued.

Now, where should the examination be held and who must bear the expense of such examination?

The proponent (supporter of the will) claims that once the decedent’s will is presented to the court with an affidavit of the attesting witnesses authorized by SCPA with the requirements having been met, the burden of compelling the production of the attesting witnesses is upon the party seeking to depose such attesting witnesses. A New York Probate Lawyer said the proponent refers the court to Powers, Supplementary Practice Commentaries, that ” * * * the duty of compelling the attendance of a witness [is imposed] upon the party seeking the examination”, and it refused to direct the proponent to produce the witnesses for examination.