Probate & Estate Litigation

Published on: November 11, 2012

Court Decides Jurisdiction of Will

by Stephen Bilkis

This is a probate case being held in the Surrogate’s Court of Queens County. The testatrix in the matter died a resident of Connecticut. She left both tangible and intangible personal property in Queens County. Her will states that her entire estate is to be divided equally between her two sons who are non residents. The oldest son is named as the executor of the estate and has filed a petition for probate in this court. After this proceeding was commenced, the younger brother who knew about the will received letters of administration from his mother’s estate in Connecticut. The youngest son is now moving to dismiss the petition in this court for lack of jurisdiction.

Case Discussion and Decision

A New York Probate Lawyers said while it is inarguable that the testatrix was a resident of Connecticut and the two legatees are non residents, the court has the discretion to permit the original probate of a will of a non resident who dies outside of the state that leaves personal property within this county.

Published on: November 10, 2012

Court Decides Disposition of Real Property

by Stephen Bilkis

In a discovery hearing held before the Surrogate’s Court of the City of New York located in Nassau County the estate is seeking to establish the existence of a leasehold interest in commercial real property and to enforce its provisions. A New York Probate Lawyer said the petitioner has submitted an application to the court for preliminary injunction.

Case Background

The decedent passed away on the 2nd of May, 2004 and is survived by three children, one who is the respondent in the case. A petition has been filed for probate of an instrument that was dated the 2nd of July, 2002.

Published on: November 9, 2012

Court Determines if Will is Valid

by Stephen Bilkis

This case involves a probate proceeding and is being heard in the Surrogate’s Court of Kings County. A New York Probate Lawyer said he instrument that is offered for probate in this matter is written on a regular piece of notebook paper that has been folding in half to form four pages. The entire paper is written in the handwriting of the decedent all the way down to the signature. The words “my will and testament” appear near the bottom of the page. Brooklyn Probate Lawyers said there are two witness signatures on the paper as well, along with their addresses. However, both witnesses are now deceased and there is no attestation clause.

Case Background

It is shown at the time the will was executed the decedent was a notary republic. The decedent deposited the will with the Surrogates Court of Queens County for safekeeping in June of 1933. The will remained in the custody of the said court until it was released to this court when the decedent passed away in 1965.

Published on: November 8, 2012

Appellants Contends Decedent Lacked Testamentary Capacity

by Stephen Bilkis

This is a case being heard in front of the Supreme Court of the State of New York, Appellate Division, and Second Judicial Department. The case is a contested probate proceeding. The objectant of the case is appealing a decree made by the Surrogates Court of Queens County. The decree granted the petitioners motion for summary judgment and dismissed the objections to probate based on undue influence and admitted the will for probate.

Case Background

The last will and testament of the decedent is dated the 18th of September, 2003. The decedent passed away on the 29th of July, 2007. The will left the entire estate to the proponent, who filed a petition for probate. The propounded will referred to the decedent’s daughter, the objectant of the case, and named her as the contingent beneficiary of the estate if the proponent predeceased the decedent. The objectant filed objectants to the probate of the will alleging that it was written by the testator executed this will under undue influence by the proponent.

Published on: November 6, 2012

Court Interpretes Last Will and Testament

by Stephen Bilkis

This is a probate matter dealing with the will of the decedent. In this proceeding it has been requested that a construction of specific paragraphs of the decedents will be conducted. A New York Probate Lawyer said in the second paragraph of the will it is clearly written that the premises located at 42-32 81st Street in Elmhurst, Queens County, New York be left to her daughter. The condition to the home being given to her daughter is that it cannot be sold until ten years after the decedent’s death.

In the seventh paragraph of the will the testator named her other daughter as the sole beneficiary of the income of the home located at 42-30 81st Street in Elmhurst, Queens County, New York. The paragraph goes on to state that if the marital relationship between her daughter and her daughter’s husband is terminated either by the death of the husband or through divorce the property is to be hers absolutely and forever.

Court Decision

Published on: November 5, 2012

Petitioner Challenged Bequest of Retirement Account

by Stephen Bilkis

This case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department. A New York Probate Lawyer said this is an appeal made by the petitioners of the matter. The petitioners are appealing an order that was made in the Surrogates Court of Queens County. The order denied their motion for summary judgment on their petition and determined that the bequest of a certain retirement account to others.

Court Discussion and Decision

The petitioner’s contend that the Surrogates court made an error in finding that the bequest was a specific bequest. However, this contention is contrary to the findings made in this court. The subject bequest was reviewed by this court and it is found that the Surrogate’s court made the correct decision in this matter.

Published on: November 4, 2012

Executor Petitions for Judicial Settlement

by Stephen Bilkis

This is a case being heard in the Second Judicial Department of the Supreme Court of the State of New York, Appellate Division. The case is a probate proceeding where the executor of the estate petitioned for judicial settlement of the decedent’s estate. A New York Probate Lawyer said the objectant is appealing an order made in the Surrogates Court of Queens County that granted the motion for summary judgment by the petitioner to have the objections dismissed. The order that judicially settled the account, made by the same court, is also being appealed.

Court Discussion and Decision

The court is ordering that the appeals be dismissed with all costs payable by the appellant personally.

Published on: November 3, 2012

Court Looks at the Intent of the Decedent

by Stephen Bilkis

Establishing the jurisdiction that will handle a probate action in a New York Probate Court sometimes requires the knowledge of the decedent’s entire residential history. Just because a person dies in one county does not mean that the probate should be handled by that county. Probate in New York Law is handled by the jurisdiction that the decedent lived in for the ending years of their life. A New York Probate Lawyer said that address must be a voluntary residence and not necessarily a nursing home or hospice where the person resided toward the end of their lives. In New York law, it is referred to as a domicile. A domicile is existing until a new one is set up. A person moves from one domicile to another throughout their lives. The primary element in establishing a domicile is intent. Sometimes, the evaluation of residential change and intent to move can be blurry.

In one case, a woman who was born in Odessa, Russia in 1898, moved to Brooklyn, New York sometime around 1911. She was married and lived as an American citizen for the remainder of her life. She and her husband purchased a home on Beaumont Street in Manhattan Beach in Brooklyn, New York shortly after their marriage. They lived in that house and raised their family to adulthood in that house. In 1989, she began to have medical problems. During that year and the one that followed, she spent most of her time in hospitals or nursing homes. On December 6, 1990, she was a resident patient at Beth Israel Hospital in Manhattan. She died on that date. For three months before she died she had lived in a nursing home in Bronx County.

Her family had sold her home in Manhattan Beach during her long illness. The court was required to determine if she was considered a resident of Bronx County or a resident of Brooklyn. An additional complication was that she died in Manhattan. The court must evaluate which county was the woman’s domicile at the time of her death. They determined that it would not be appropriate to determine that she was a resident of Manhattan since her stay there was too short. A Westchester County Probate Lawyer said the question remains as to whether she has a domicile in the Bronx, or Brooklyn. The argument that is most important in this particular case involves that of intent. Did the woman have the intent to sell her lifelong domicile in Brooklyn and establish a new domicile in the Bronx prior to her death? The court must try to determine what the woman’s intent was at the time that her home was sold.

Published on: November 2, 2012

Court Finds Executors Pay Excessive

by Stephen Bilkis

This is a case being heard in the Surrogate’s Court of Queens County. The court has started this proceeding in regard to its own administrative rule that requires an account to be filed within a year of the date a fiduciary is appointed who is also an attorney.

Case Background

In this case the attorney/fiduciary was ordered to file an accounting with this court no later than one year after the date of the decree and failure to do so will result in the letters being revoked. The executor has filed his account within the set time limit.

Published on: November 1, 2012

Petitioner Claims Will Not Valid

by Stephen Bilkis

An instrument alleged to have been executed in December of 1955 by the decedent is being offered for probate in the Surrogate’s Court of Queens County. The instrument names an executor and an attorney and draftsman as well.

Case Background

The decedent passed away in April of 1957. She was survived by her sister to whom she left $500 and the right to be buried in her plot. The decedent left $200 to a former employee. The rest was given to a “dear friend.” The estate has an estimated worth of $5,500.