Probate & Estate Litigation

Published on: July 25, 2012

Court Decides on Payments to Ancillary Executor

by Stephen Bilkis

The woman died leaving a Will. At the time of her death, the woman was a resident of Florida and supplementary letters of estate administration were issued to the executor of the estate. The accounting covers the period May 3, 2004 to April 21, 2009. An amended accounting covering the period May 3, 2004 to December 22, 2009 was filed on February 5, 2010. The amended accounting shows principal charges to the accounting party of $829,804.35.

Objections to the accounting and the amended accounting were filed by the $10,000.00 legatee and the beneficiary of fifty percent (50%) of the residuary properties. The ancillary executor is the beneficiary of the other fifty percent (50%) share of the residuary properties. By documents dated December 2, 2010, the executor withdrew his objections to both the first account and the amended account.

A New York Probate 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. 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: 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 22, 2012

Court Decides Guardian Ad Litem Fee

by Stephen Bilkis

This is a hearing in the matter of the last will and testament of the deceased Joseph R. Drab. The probate case is being heard in the Surrogates Court of the state of New York in Nassau County.

Probate Proceeding

The decedent of the case was survived by his spouse, his son Richard, who is the petitioner in the case, four grandchildren, and a predeceased child. The spouse of the decedent is disabled and is therefore represented by a guardian ad litem that has been appointed by the court.

Published on: July 21, 2012

Court Decides Ownership of Property Where Couple was Married Twice

by Stephen Bilkis

This case is being heard in the Special Term of the Suffolk County Supreme Court. The case deals with the will of Gladys Guernsey. The plaintiff in the case is the executor of the last will and testament of Gladys Guernsey, Patrick Beary. The defendants in the case are Leach C. Hoffman and James L. Guernsey. The judge overseeing the case is John P. Cohalan Jr.

Action

A New York Probate Lawyer said the plaintiff is seeking a judgment under Article 15 of the Real Property Actions and Proceeding Law. He argues that the estate of the decedent, Gladys Guernsey is the owner of three different parcels of real estate located in Lindenhurst, in Suffolk County, New York. The original testatrix in the case passed away on the 11th of July after beginning this action. Patrick Beary was named as executor and is substituted to complete the action.

Published on: July 19, 2012

Court Decides Reasonable Attorney’s Fees in Estate Matter

by Stephen Bilkis

This is a case being heard in the Surrogate’s Court of New York County. The issue of the case deals with the estate of Emma B. Johnson. The executor and petitioner for the estate is Norman W. Roe. The respondents in the case are Long Island College Hospital, The Industrial Home for the Blind, and St. Faith’s House.

Objections

The issue of this case involves objections to the amount of legal fees that have been paid to the law firm of Vunk & Carleton. The three objectors of the case were given equal parts of half of the estate of Emma B. Johnson. The owner of the other half of the estate is Norman W. Roe. Norman Roe is the temporary administrator and executor of the estate and is the brother of the testatrix.

Published on: July 18, 2012

Foreclosure of Home Involved in Probate

by Stephen Bilkis

The plaintiff in this case is Financial Freedom Acquisition. The defendants in the case include Kevin J. Malloy, Esq. who is the guardian ad litem for the unknown distributees, heirs, and next of kin of the deceased, Howard Harris. This includes anyone that is interested in the estate of Howard Harris as the distributee or otherwise.

Orders of the Court

This is a notice of motion and cross motion in regard to the estate of the decedent Howard Harris. There have been papers filed, numbers one through 23 in this case.

Published on: July 16, 2012

Court Finds Clear Error in Will

by Stephen Bilkis

This is a matter involving the estate of Eugenia C. Herceg who is deceased. The petitioner is represented by the law firm of Levene, Gouldin & Thomas, with John H. Hartman for counsel.

Case Background

In the will of Eugenia Herceg there is a residuary clause that is dated the second of December, 1999. This clause states that at the time of her death all of the rest of her personal and real property the same will situate. There is no name of a beneficiary given. In all practicality, this residuary clause only refers to 10% of her estate as the other 90% of the estate is bequeathed to others.

Published on: July 15, 2012

Sibling Claims Decedent was a Victim of Undue Influence

by Stephen Bilkis

An 87 year old bachelor died on May 12, 1992. He had an estate that was worth $7,000,000. He left his estate to his sister, his brother and the two children of his brother who died before him. He also named the three children of his sister as his heirs. The sister was the named executor in the bachelor’s will.

She filed a petition for probate but this probate was opposed by the bachelor’s brother and his nephews. During the pendency of the probate proceedings, the sister died and in her own will, she named her son as the executor of her will and the executor of her bachelor brother’s will. The Surrogate Court granted letters testamentary to the nephew of the bachelor.

The crux of the issue in the probate proceedings is the testamentary capacity of the bachelor at the time of the execution of the will and whether or not undue influence was exerted by his sister so that he executed the will which is now being presented for probate.

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.