Probate & Estate Litigation

Published on: September 19, 2013

Court Discusses Proving Testamentary Capacity

by Stephen Bilkis

A New York Probate Lawyer said that, in this contested probate proceeding, the proponent, moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument dated March 19, 2003 to probate. The objectant is the son of the decedent. The propounded instrument nominates the proponent as executor. The decedent, died on August 8, 2006, at the age of 88, survived by two children. Decedent and his wife of 42 years were divorced on January 8, 2004. The will offered for probate bequeaths substantially all of decedent’s assets to Perry to the exclusion of Nils. The decedent had as many as six wills, all but one of which (March 31, 2001) excluded Nils from decedent’s estate.

A New York Wills Lawyer said that, in 1954, the decedent founded a company in the business of the distribution of airplane parts and accessories. Decedent was the sole shareholder. Both the decedent’s children were employed by the company. In 1995, the first son’s employment was terminated and thereafter, he and decedent were estranged. On April 12, 2002, pursuant to a stock purchase agreement, the decedent sold his stock in the company to his son who executed a note for $9,600, 000, representing the purchase price of 80% of decedent’s shares. The remaining 20% of the stock was gifted by decedent to his son. Prior to the stock sale, decedent transferred substantial assets to his wife.

A Nassau Estate Litigation Lawyer, the objectant has interposed the following objections to the propounded instrument: lack of testamentary capacity, lack of due execution, fraud, and undue influence. In support of the motion to admit the will to probate, the proponent submits his own affidavit, the deposition testimony of witnesses to the will, the affidavits of employees of the company, the company’s accountant, the wife’s attorney an associate in proponent’s law firm. Various documentary evidence was also submitted.

Published on: September 18, 2013

Court Decides if the Account of the Public Administrator Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Uniondale, on December 26, 1998. Decedent left a will dated June 15, 1979 which bequeathed her entire residuary estate to her nephew, who post-deceased the decedent. The Public Administrator was appointed temporary administrator of the estate on April 14, 2005. Decedent’s will was admitted to probate by a decree of this court dated May 11, 2010 and letters of administration c.t.a. were issued to the Public Administrator on that date. The account of the Public Administrator was initially filed on July 6, 2010.

A Nassau Probate Lawyer said that, the account filed by the Public Administrator shows the receipt of $87,102.28 of estate principal, which was supplemented by income collected totaling $4,935.98. This resulted in total charges of $92,038.26. This amount was reduced by administrative expenses through April 30, 2010 in the amount of $68,155.17, leaving a balance of $23,883.09 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the court appointed administrator of the estate of the decedent’s nephew. In addition, the court must release the administrator from the surety bond.

The issue in this case is whether the account of the Public Administrator should be granted.

Published on: September 17, 2013

Court Decides Whether Accounting Fees and Attorney’s Fees Should be Approved

by Stephen Bilkis

A New York Probate Lawyer said that, in this accounting proceeding, the only issues before the court are the approval of attorneys’ fees and accounting fees. The decedent died on November 25, 2004, a resident of Nassau County leaving a will dated October 12, 2004, which was admitted to probate by decree of this court dated July 12, 2005. Letters testamentary issued to the decedent’s daughter, on July 12, 2005. The decedent was survived by seven children. The will divides the decedent’s residuary estate equally among his seven children

A New York Wills Lawyer said that, this is the executor’s first and final accounting covering the period November 25, 2004 through May 30, 2008. The summary statement shows charges to the accounting party of $955,030.92. Objections to the account were filed by the other children of the decedent. A stipulation of settlement settling the objections was entered into on September 23, 2009. Pursuant to the terms of the stipulation, the executor agreed to reduce her claim for executor’s commissions from $32,414.40 to $22,414.40 and use the reduction to fund a $10,000 payment to the objectants. The agreement also provides for the distribution of certain items of tangible property.

The issue in this case is whether the accounting fees and the attorney’s fees should be approved by the court.

Published on: September 8, 2013

Petitioner Moves for Summary Judgment in Will Contest Proceeding

by Stephen Bilkis

This is a probate proceeding wherein petitioner, A, moves for summary judgment pursuant to CPLR 3212 dismissing the objections to probate of the respondent, B, and admitting into probate the last will and testament of the decedent dated 7 April 1997 and a codicil dated 2 August 2006.

The court grants the motion in its entirety.

A New York Probate Lawyer said the decedent, C, died on 31 October 2010. C was survived by her husband, A, the petitioner, and by her two sons: B, the respondent, and D.

Published on: September 7, 2013

Court Reviews Details of Final Accounting

by Stephen Bilkis

Before the court is the first and final account of A as ancillary executor of the estate of B; an estate litigation. The court is asked to approve attorney’s fees, commissions, reimbursement of expenses for the estate administration and the settlement of the account.

A New York Probate Lawyer said on 3 May 2004, the decedent, B, died. B left a will dated 13 February 2001. At the time of her death, the decedent was domiciled in Florida. Ancillary letters testamentary issued to A on 18 July 2005. The accounting covers the period 3 May 2004 to 21 April 2009. An amended accounting covering the period 3 May 2004 to 22 December 2009 was filed on 5 February 2010. The amended accounting shows principal charges to the accounting party of $829,804.35. C, a $10,000.00 legatee and the beneficiary of fifty percent (50%) of the residuary estate filed objections to the accounting and the amended accounting. The ancillary executor is the beneficiary of the other fifty percent (50%) share of the residuary estate. By instrument dated 2 December 2010, C withdrew his objections to both the first account and the amended account.

A New York Wills 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 as held in Matter of Stortecky v Mazzone, Matter of Vitole and Matter of Phelan. 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 as was also held in Matter of Brehm and Matter of Wilhelm.

Published on: September 6, 2013

Court Reviews Legal Fees In Estate Administration Case

by Stephen Bilkis

Submitted for decision in this intermediate accounting proceeding is the issue of fees and commissions.

On 6 October 1999, A died. She left a will dated 8 August 1997. On 11 April 2000, the will was admitted to probate and on the same date, a letters testamentary was issued to B, her son. B died on 6 May 2002. This is an intermediate accounting by C as executor of the estate of the deceased executor B. The accounting covers the period from 6 October 1999 through 6 May 2002. The summary statement shows charges to the accounting party of $2,384,134.60.

A New York Probate Lawyer said that with respect to the issue of attorney 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 fees rendered in the course of an estate as held in Matter of Stortecky v Mazzone. 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 as held in Matter of Brehm.

Published on: September 5, 2013

Court Finds Decedent’s Testamentary Capacity is in Question

by Stephen Bilkis

This case is contested probate proceeding brought to the court by the nephew of the decedent, A. Objectant moves for an order pursuant to CPLR 3212 granting summary judgment denying probate to the two propounded wills dated 19 October 2001. A New York Probate Lawyer said the proponent, B, cross moves for summary judgment dismissing the objections and admitting the propounded instruments dated 19 October 2001 to probate. The objectant has interposed his objections to the propounded instruments alleging undue influence and lack of testamentary capacity. Objectant also seeks to disqualify B as executor of the estate pursuant to SCPA 707.

On 19 December 2001, decedent C died. He was survived by five brothers and sisters and nieces and nephews of predeceased siblings. Proponent B petitioned for probate of two instruments dated the same day, 19 October 2001. Both instruments contain the names of L, M, and N as the attesting witnesses and O, notary, with a stamp and signature.

Both instruments nominate B as executrix; one of them nominates D as successor. Both instruments divide the estate equally between D and B.

Published on: September 4, 2013

Court Discusses Undue Influence in Will Signing

by Stephen Bilkis

A New York Probate Lawyer said this case is a contested probate proceeding wherein the petitioner, A, the decedent’s second wife, moves for an order pursuant to CPLR 3212 granting summary judgment admitting the proffered instrument dated 21 December 2005 to probate and dismissing the objections filed by three of the four of decedent’s children from his first marriage, X, Y and Z.

On 29 October 2009, the 89 year old decedent died. On 12 September 1984, he was married to petitioner A. An instrument purported to be his last will and testament has been submitted for probate. In his will, petitioner was named the executor. The propounded instrument leaves his entire estate to the petitioner as his surviving spouse and unless she predeceases them makes no provision for the respondents. However, an earlier will dated 29 March 1994, left decedent’s entire estate to objectants.

A New York Wills Lawyer said the respondents have filed objections to probate alleging that: (1) the alleged will was not duly executed as required by law; (2) the propounded instrument was not freely or voluntarily made or executed by the decedent, but was procured by fraud or undue influence practiced upon the decedent by the petitioner or others acting in concert with her; and (3) on the date of the making of the instrument, decedent was not of sound mind or memory and thus incompetent to make a will.

Published on: September 2, 2013

Court Determines Legal Fees in Estate Litigation

by Stephen Bilkis

In this Estate Litigation, the decedent, died in October 1999. Her will on 1997 was admitted to probate in April 2000. Letters testamentary issued to the decedent’s son. The son died in May 2002. Following his death, successor letters testamentary issued to the administrator in June 2002.

A Nassau County Estate attorney said that under Article THIRD of her will, the decedent bequeathed her residuary estate to her surviving issue subject to trusts created under Articles FOURTH, FIFTH and SIXTH. The decedent was survived by her son, a daughter, and a granddaughter, who is the daughter of the decedent’s predeceased daughter. Pursuant to the will, the share for the decedent’s son was set apart for his benefit in trust to be administered in accordance with the provisions of Article FOURTH. Letters of trusteeship issued to the son and another as trustees of the Article FOURTH trust. Pursuant to the terms of the trust for son, the trust terminated upon the son’s death and the then principal and income became payable to his surviving issue, subject to further trusts for any such issue under the age of thirty-five.

A New York Probate Lawyer said the son was survived by two children who are under the age of 35 and, therefore, separate trusts were created for the benefit of each pursuant to Article SIXTH. Letters of trusteeship issued to the daughter as trustee of the trusts for the benefit of the son’s children.

Published on: September 1, 2013

Probate Clears up Issue of Old Loan by Decendent

by Stephen Bilkis

In this Probate action, the decedent died leaving a will which was admitted to probate in July 2004. The decedent was survived by his four children. A New York Probate Lawyer said the will makes pre-residuary cash bequests of $45,000.00 to each child. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to one of the child.

A New York Will Lawyer said that the administrator originally filed a First and Final Accounting of his proceedings covering the period May 2004 through January 2008. Thereafter, He filed a document which covers the same period covered by the First and Final Accounting. The Interim Account was verified by him nearly one year after the First and Final Account.

One of the administrator’s sibling filed objections to the accounting