Probate & Estate Litigation

Published on: August 31, 2013

Court Discusses Conflict of Creditor Acting as an Administrator

by Stephen Bilkis

In this Estate Litigation action, a creditor of the deceased filed a petition. Petitioner asks the court to issue limited letters of administration to the Public Administrator of Nassau County so that he can defend the estate against creditor’s mortgage foreclosure action against decedent’s residential real property. The petition avers that the outstanding mortgage is in the amount of $373,954.81 and that there are no other outstanding debts or funeral expenses.

A New York Probate Lawyer said that deceased died sometime in September 2007 while visiting El Salvador. According to the petition before the court, decedent was survived by his wife and two minor children, all of whom are citizens and residents of El Salvador. The petition does not contain street addresses for these non-resident distributees. The petition further reflects that decedent was also survived by one adult child, who resides in decedent’s home, which is the subject of the foreclosure action underlying this petition.

Citation issued listing the wife and the Public Administrator, and was returnable. Affidavits filed with the court indicate that the citation was served. An affirmation in support of amending the petition and dispensing with service on wife was filed by counsel on behalf of the Bank one day prior to the return date of the citation. Counsel for petitioner affirms that the daughter advised his office that the wife lives in El Salvador but that the child was unable to provide the wife’s address. Counsel avers that wife’s residency in El Salvador was confirmed by the process server’s unsuccessful attempt to serve citation on the wife at decedent’s home. Attached to counsel’s affirmation is an affidavit of due diligence that reflects that in addition to attempting to serve the wife at decedent’s last address, counsel’s staff also ran a computer search for the wife using the on-line telephone directory for El Salvador, but did not find a listing for the wife’s name. The affidavit concludes by stating that “deponent duly exhausted all efforts to obtain jurisdiction over the defendant”

Published on: August 21, 2013

Petitioner Files a Petition to Compel an Accounting

by Stephen Bilkis

Decedent, by codicil, nominated his attorney and that attorney’s accounting partner as co-executors of his estate. It was apparent from the outset of the probate proceedings that this estate was of sufficient financial magnitude as to fall within those provisions entitling each fiduciary to seek a full commission.

According to a New York Probate Lawyer, decedent died in November 1976, and permanent letters were issued by decree. The five objectants constitute decedent’s widow and four children, all of whom comprise the primary beneficiaries of this estate. Probate was accomplished without objection to the nominated fiduciaries. Decedent’s youngest issue, then an infant, was represented by a guardian ad litem. It does not appear that decedent’s three adult issue were individually represented by counsel in the probate proceedings. The fiduciaries’ administration of this estate continued without objection until the filing of their final account. This account was filed subsequent to the bringing on of a petition to compel an accounting. The examination of the schedules constituting this account indicates an administration with some complexity.

A New York Will Lawyer said the objections which the accounting parties seek to have dismissed relate to the right of the two fiduciaries to each seek a full commission. The issues relative to the co-executors’ administration of the estate and whether that administration would justify some form of reduction in their compensation is not presently before the court. More particularly, it is now claimed that the co-fiduciaries, one of whom was the attorney draftsman of the codicil containing his appointment, “negligently, unethically, improperly, and/or fraudulently” failed to inform the testator of the standards for two full commissions and that two commissions should, therefore, not be paid.

Published on: August 20, 2013

Court Decides Property Ownership in Light of Two Separate Wills

by Stephen Bilkis

A New York Probate Lawyer said in an action transferred to this court from Supreme Court, Nassau County, defendant moves for an order directing the County Clerk of Nassau County to cancel a notice of pendency filed in connection with the action and for an order quieting title in the defendant and for such other relief as to the court seems just.

A Nassau County Estate lawyer said that defendant is the grandson of plaintiff, the decedent in the probate proceedings currently pending before this court. Decedent’s daughter is representing the estate in the Supreme Court action in her capacity as preliminary executor. A brief recitation of the essential allegations in the pending proceedings and the identities of the parties involved may facilitate an understanding of the court’s decision on the instant motion.

The decedent and her husband took title to the subject premises in New York by deed. The deed identifies the grantees as the spouses thus presumptively creating a tenancy by the entirety. The husband died in November 1996. A New York Will Lawyer said that assuming the validity of the tenancy by the entirety, the decedent became the sole owner of the premises upon the husband’s death.

Published on: August 19, 2013

Attorneys Fees Determined in Lengthy Probate Proceeding

by Stephen Bilkis

A New York Probate Lawyer said iIn related probate and miscellaneous proceedings regarding the estate of the decedent, before the court is a proposed stipulation of settlement resolving the issues in both proceedings. Because the interests of the decedent’s infant son may be affected by the settlement, the approval of the court is required (SCPA 2106). The guardian ad litem appointed to represent the interests of the decedent’s infant son has filed his final report wherein he recommends that the court approve the settlement and authorize him to enter into it on behalf of his ward.

A Nassau County Probate lawyer said that the probate proceeding has been pending in the court for over three years and the miscellaneous proceeding, a discovery proceeding pursuant to SCPA 2103, has been pending nearly three years. The proposed settlement will end both disputes and provides for the infant son to receive a 10% interest in the decedent’s home, valued at approximately $1.5 million. The other 90% interest will be held by the child’s mother. A New York Will Lawyer said the stipulation of settlement is approved, the court being satisfied that the interests of the infant beneficiary and the other interested parties will be promoted by an end to the current litigation. The decedent’s will shall be admitted to probate in accordance with the terms of the stipulation of settlement.

Queens Probate Attorneys said the court must also fix a reasonable fee for the services of the guardian ad litem. The court notes that the stipulation of settlement provides that the fee of the guardian ad litem will be a charge against the general estate. 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. 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”.

Published on: August 18, 2013

Court Decides Statute of Limitation Issue

by Stephen Bilkis

The decedent died on February 7, 1946. Shortly thereafter the executrix filed with the court a petition for the probate of the decedent’s will, together with her oath and designation. Jurisdiction of all necessary parties was obtained and the proceeding was marked for decree on July 10, 1946, subject to the affidavits of subscribing witnesses. Letters testamentary were not issued at that time.

The County Attorney of advised the then petitioner (and now executrix) by letter of the existence of the, the Board of Public Welfare of Nassau County filed a notice of claim with the court. This notice was not served on the then petitioner. Nothing further was done by the petitioner to complete the proceeding until February 1965 when the matter was reactivated and the will eventually admitted to probate and letters were issued.

A New York Probate Lawyer said the petitioner herein has requested a determination that the aforementioned claim of the Board of Public Welfare of Nassau County be held invalid and unenforceable against the estate and the executrix on the grounds that the claim is barred by the six-year Statute of Limitations provided by the old section 48 of the Civil Practice Act. The section 104 of the Social Welfare Law does not authorize recovery of amounts paid by welfare boards for any period prior to ten years before decedent’s death, and thus at least that part of the claim in the amount of $2,130.57 representing payments made prior to 1938 is not recoverable. The estate was insolvent at the date of the decedent’s death because the amount of her funeral and administration expenses exceeded the value of her personal property, and the amount of mortgage liens and unpaid interest thereon exceeded the value of her real property.

Published on: August 17, 2013

Court Suspends Letters of Testamentary

by Stephen Bilkis

A man died leaving a last will and was subsequently admitted to probate. The letters testamentary was issued to the deceased man’s youngest son. Still, the last will bequeath the man’s residuary estate equally to his three sons.

A New York Probate Lawyer said in the court suspended the letters testamentary and issued the new one to the deceased man’s middle son. In addition, the matter was scheduled for a hearing on the issue of removing the youngest son as the administrator.

Prior to the proceeding, the youngest son made a motion to disqualify his brother’s attorney. Then, the parties entered into a written condition resolving the various issues. A New York Will Lawyer said the stipulation provided that the deceased man’s middle son would withdraw his motion against his younger brother and for an accounting. On the other hand, the youngest child would withdraw his motion with regards to the law firm disqualification.

Published on: August 2, 2013

Petitioner Challenges Validity of Tax Assessment

by Stephen Bilkis

In this estate case, New York Probate Lawyer said that a hybrid proceeding pursuant to CPLR article 78, inter alia, to review real property tax assessments for tax year 2008 and action for a judgment declaring that certain undeveloped parcels of real property owned by the petitioner/plaintiff were unlawfully assessed at nine times their values, the petitioner/plaintiff appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Orange County, dated July 15, 2009, as granted the motion of the respondents/defendants, as Assessor for the Town of Goshen, and the Town of Goshen, in which the respondent/defendant School District joined, pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition/complaint insofar as asserted against each of those respondents/defendants, and dismissed the proceeding and action insofar as asserted against each of them.

A New York Will Lawyer said that, also in an action pursuant to General Municipal Law § 205-e to recover damages for personal injuries, the defendant 1299 Eastern, LLC, appeals from so much of an order of the Supreme Court, as granted that branch of the plaintiff’s motion which was for leave to renew his opposition to its prior motion for summary judgment dismissing the complaint insofar as asserted against it, which had been determined in a prior order dated August 11, 2006, and upon renewal, vacated the order dated August 11, 2006, and denied the motion for summary judgment.

Long Island Probate Lawyers said the issue in this case is whether the subject property of the estate were unlawfully assessed.

Published on: August 1, 2013

Probate Court Decides Out of State Jurisdiction Issue

by Stephen Bilkis

Two cases before two (2) courts involve the same or similar issues, that is, the jurisdictions of both courts in ruling upon the probate proceedings filed before it.

First Case:

A New York Probate Lawyer said that on 26 April 1954, the decedent was committed to a State Hospital. Thereafter or on 12 August 1954, a Supreme Court in Kings County issued an order finding decedent to be an incompetent person. This order recited that decedent was then a resident of Kings County, and appointed “A”, a resident of Huntington, Suffolk County, as committee of the person and property of the incompetent. On 29 March 1955, the decedent died while a patient in the State Hospital. Consequently, “A”, who continues to reside in Huntington, was named executrix in the will of the decedent. Following the death, a probate proceeding was then instituted with “A” as the petitioner in Suffolk County. Respondent, appearing specially, challenges the jurisdiction of the Court on the ground that decedent, at the time of his death, was a resident of Kings County.

Published on: July 29, 2013

Court Decides if Deceased Had Testamentary Capacity

by Stephen Bilkis

A New York Probate Lawyer said this is a contested probate proceeding after trial before the court and a jury wherein a verdict was rendered by the jury finding that at the time of execution of the propounded instrument the decedent lacked testamentary capacity and that the execution of the instrument was caused or procured by undue influence and fraud. The evidence offered attributed the undue influence and fraud solely to proponent. The court espoused the verdict of the jury on these issues. The contestant has exercised his option to seek costs pursuant to SCPA 2302 upon the entry of the decree. It is the proponent’s contention that the court should not exercise its discretionary power to allow costs to the contestant since the proponent having been named in the instrument as executor was under a duty to offer the purported will for probate. The sole legatee in the instrument at issue was proponent’s wife.

A New York Will Lawyer said the court holds that as a general rule, a person named as executor has the duty to bring forward the will and to assume the burden of its probate. Having this duty, he will not usually be burdened with costs if he fails in his effort to have the instrument admitted to probate. But where it is shown, as it was in this case, that the executor was guilty of fraud and undue influence practiced by him personally in the fraudulent execution of the will, and with full knowledge of the fraud he attempted to impose the instrument upon the court as a valid document, it must be concluded proponent was acting in bad faith. In such cases, good morals and public policy dictate that not only should proponent be denied costs but that he be personally charged with discretionary costs for his unsuccessful effort as was ruled in the cases of Matter of Reeves, Matter of Godlef, Matter of Lachat and Matter of Jackson.

A Staten Island Probate Lawyer said the court has reached the conclusion that proponent should be taxed personally with costs. The application presents a question as to the amount of said costs. Contestant seeks the sum of $4,100. This amount includes $300 by reason of having a contest, $1,200 for 5 days of trial less one, plus $100 per day for 26 days spent in preparation for trial based in SCPA 2302(2)(a) (ii).

Published on: July 29, 2013

Probate Court Analyzes Landlord Tenant Relationship

by Stephen Bilkis

A New York Probate Lawyer said this is an appeal from an order of the County Court of Delaware County entered June 23, 2006, which, among other things, dismissed petitioner’s application, in a proceeding pursuant to RPAPL article 7, to recover possession of certain real estate property. In August 2005, the parties entered into a written contract for the sale of certain real property by petitioner to respondent. Respondent took possession of the property and, when he failed to pay rent and taxes and maintain homeowner’s insurance as allegedly required by the parties’ agreement, a New York Estate Lawyer said that petitioner commenced an eviction proceeding in the Justice Court of the Town of Colchester, Delaware County. In settlement of that proceeding, the parties entered into a written “Rental Agreement” providing that respondent, as “tenant,” would maintain possession and pay $1,000 owed for back rent and $1,000 monthly for rent thereafter, plus $95 for taxes and $40 for homeowner’s insurance as additional monthly “rent.” The rental agreement further stated that respondent was to obtain a mortgage commitment by December 2005 and, if he failed to do so, the prior contract of sale would be “cancelled” and petitioner, as “landlord,” would be entitled to a warrant of eviction.

A New York Will Lawyer said that, after respondent failed to obtain a mortgage commitment, petitioner obtained a warrant of eviction in Justice Court awarding him possession of the property on the ground that respondent “stipulated to a mortgage commitment which has not been obtained.” Upon respondent’s appeal, County Court concluded that Justice Court did not have subject matter jurisdiction, dismissed the petition and rescinded the amended warrant of eviction. Petitioner appeals and we now affirm.

The issue in this case is whether petitioner can recover possession of the said real estate property which is the subject of the litigation.