Probate & Estate Litigation

Published on: July 14, 2012

Jurisdiction Issue Decided

by Stephen Bilkis

A testator was born and raised in Brooklyn, New York but after he got married, he lived with his wife in Florida. Later, the testator and his wife resided in Phoenix, Arizona. While they resided in Phoenix, Arizona, the testator’s wife died. It was around April 2004 that he executor his will in Arizona.

The testator first executed a trust in favor of his grandson. In his will, he left his entire estate to the trust he created. He named his grandson the sole beneficiary of his trust.

A year after he created the trust and executed his will the testator called his sister asking her to come and get him from Phoenix, Arizona because he wanted to go back and live in Brooklyn with her. At that time the testator was ninety-five years old and he had heart disease. He told his sister that he wanted to change his will. So before he boarded the airplane bound for Brooklyn, New York, he and his sister went by the office of a lawyer where he changed the beneficiary of his 2004 will and trust. He gave his sister the principal of the trust, he gave his granddaughter 3/8 of the trust and his grandson 1/8 of the trust. He also named his sister as his health care proxy. After signing the documents in the Arizona lawyer’s office, he insisted on boarding the airplane to New York immediately.

Published on: July 13, 2012

First Wife Petitions Will

by Stephen Bilkis

A man married a woman sometime on February 11, 1921 while they were residents of New York state. A year later, the man filed a case for annulment of his marriage in King’s County. He claimed that the woman he married falsely represented herself. He court dismissed the petition for annulment of marriage.

Two years later, the wife had to be committed to a mental institution and declared as incompetent. She has been confined in a state mental institution from that time until the death of the man in 1954.

A New York Probate Lawyer said five years after the wife was declared incompetent and was ordered to be confined to a mental institution, the man filed another annulment action before the court. This time, the court granted his petition for annulment. The court’s grant of the annulment was conditioned on the execution of the husband of an undertaking to pay the state institution the sum of $7 weekly for her medical costs. The man never signed an undertaking to foot his ex-wife’s medical bills and the clerk of the court never entered the decision granting him the annulment of marriage he had prayed for.

Published on: July 12, 2012

Court Discusses Attorney Client Privlege

by Stephen Bilkis

A man and his wife consulted a lawyer to plan the disposition of their estates on the event of their demise. The man and his wife both executed individual wills based on the advice and opinion of the lawyer they both consulted.

When the man died, his will was submitted for probate. His wife was named as executor of his will. The other heirs named in the will were the man’s children. During the probate proceedings, the children of the man asked that the executrix, the wife of the testator, be compelled to submit copies of the notes and letters sent by the lawyer of the testator to the testator where he summarized the wishes of the testator regarding the disposition of his estate.

A New York Probate Lawyer said the children of the testator claim that the attorney’s notes and his letters to the testator will yield information regarding his true wishes as he communicated it to his lawyer; it will also inform the court regarding the state of mind of the testator and may show whether the testator had the necessary testamentary capacity.

Published on: July 11, 2012

Court Decides Probate of Case After Decedent Was Murdered

by Stephen Bilkis

On 2009, a mother with her two daughters died at the hand of their husband and father. After the incident, the father committed suicide and died later that same day. Consequently, the mother’s cousin granted the temporary letters of estate administration of the three deceased. The mother was survived by one of her sister however her sister filed a waiver of a notice to appear in court, renunciation and consent to the appointment of the mother’s cousin to serve as administrator in connection with each of the three estates.

The man, who was the cousin of the mother, then filed a four related petitions as temporary administrator of the estates of the mother and the two daughters, a petition for full letters of administration without bond in the assets of the mother and her daughters and a petition for the determination of the mother’s interest in real property, a condominium and a cooperative apartment.

A notice to appear in court for each petition was issued as well as the supplemental notice. The notice also duly served on the public administrator. In addition, the public administrator, whom at that time had been appointed as the temporary administrator of the husband’s assets, subsequently received a full letters. The heirs of the husband’s assets also received a full letters. The notices of appearance were filed but none of the husband’s beneficiary appeared.

Published on: July 9, 2012

Petitioner Questions Legal Fees for Estate Administration

by Stephen Bilkis

In this proceeding, the two estate administrators contested to the final accounting of the last will and testament of a man. They contested to the two stipulations signed by the interested parties to the accounting. The court previously issued a decision in which the attorneys of the complainants were directed to submit an executed copy of the second stipulation and their affidavits of legal services. The sole issue here is the approval of legal fees.

Based on records, in evaluating the cost of legal services, the court may consider a number of factors which includes the time spent, the complexity of the questions involved, the nature of the services provided, the amount and complexity of litigation required, the amounts involved and the benefit resulting from the execution of such services, the lawyer’s experience and reputation and the customary fee charged by the bar for similar services.

The affidavits filed with the court that reflect legal services provided by three different law firms, each of which will be addressed separately.

Published on: July 9, 2012

Court Says Larger Estate Doesnt Justify Larger Fees

by Stephen Bilkis

A woman resident died on February 15, 2009, leaving a last will and testament dated June 28, 2007. She was survived by 19 statutory heirs, including four siblings and the 15 children of four predeceased siblings.

The last will and testament leaves all of the woman’s property in three equal shares, two of which pass to the woman’s sisters, the elder sister and younger sister. The will directs that the third equal share be paid over to the woman’s niece, who is the nominated executor and the petitioner. It makes no mention of the woman’s third surviving sister who suffers from Alzheimer’s disease. A New York Probate Lawyer said waivers of citation were filed on behalf of 15 heirs, and jurisdiction was obtained over the remaining three interested parties, including the third sister. None of the heirs raised will contests. Preliminary letters were issued to the petitioner on May 19, 2009 and the letters have been extended upon application.

The court appointed guardian on behalf of the third sister is a guardian for incompetent persons. His report reflects that the probate estate was valued at approximately $570,000.00 and that there were non-testamentary assets of $292,000.00, including $200,000.00 held in joint accounts which named the petitioner as the joint tenant. The guardian ad litem also discovered that the petitioner had established the joint accounts using a power of attorney executed by the woman. He further learned that the last will had been prepared on the basis of telephoned instructions from the petitioner to an attorney, and that the will execution had not been supervised by an attorney. Additionally, based upon information uncovered by the guardian ad litem, which included medical records, serious questions were raised concerning the woman’s competency at the time the will was executed.

Published on: July 8, 2012

Petitioner Files Application to Modify Trust

by Stephen Bilkis

The Facts:

On 13 April 1968, a woman (hereinafter The Decedent) died leaving a will. The petitioner, a Child Care Society (hereinafter Child Care Society), seeks to modify the decedent’s will to designate a Residence for Boys (hereinafter Residence for Boys) as a beneficiary of a testamentary trust (hereinafter Testamentary Trust) established under the decedent’s will in lieu of the petitioner.

On 16 January 1969, the will was admitted to probate (for estate litigation, estate administration or will contest). The will sets forth various charitable beneficiaries. Article Fifth of the will for which relief is sought bequeaths the entire residuary estate to a trust for the benefit of a Child Care Society. Article Fifth further provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. A New York Probate Lawyer said the Testamentary Trust has a remaining principal of approximately $90,000.

Published on: July 7, 2012

Court Decides Validity of Will

by Stephen Bilkis

The Facts:

On 11 March 2011, a decedent died testate at the age of 91. She was survived by one child. Under her will dated 18 November 2010, decedent gave her personal property to her child, $6,000 to Children International, $10,000 to another individual, the proceeds of an insurance policy to a trust created for the benefit of her two grandchildren, her child’s children, and disposed of her residuary estate in three shares, as follows: one share to the trust for the grandchildren; and the other two shares to a supplemental needs trust for the benefit of her child. A lawyer (“the Lawyer”) is the nominated executor and trustee.

Following decedent’s death, the lawyer filed a probate petition as a start of estate administration. The surviving child of the decedent is a person under a disability, having suffered severe strokes in September, 2010. Because the child’s interest is greater in intestacy, a guardian ad litem (“the GAL”) was appointed for her in this proceeding. Preliminary letters testamentary have issued to the lawyer.

Published on: July 5, 2012

Petioner for Estate Claims Lawyer Misappropriated Funds

by Stephen Bilkis

Sometime in 1985, the respondent was retained by a woman to probate the Last Will and Testament of her deceased mother. The respondent accepted the retainer with full knowledge that the Will would have to be probated in the Court (for estate administration or will contest; estate litigation) in which he was employed. Thereafter, the respondent failed to apply to the Chief Administrator of the Courts for permission to engage in the private practice of law with respect to the subject estate, as follows:

In May of 1985, the respondent acting as the attorney for the estate, filed a probate petition and other relevant papers in the Surrogate’s Court, Kings County, but, in doing so, concealed the fact that he was the attorney for the estate.

On 6 June 1985, the subject Will was admitted to probate and an administratrix was appointed. The respondent was paid the sum of $1,200 for his legal services.

Published on: July 4, 2012

Court Discusses Pour-Over Wills

by Stephen Bilkis

On 24 January 2006, a resident of Nassau County died. Prior to his death, on 24 October 2003, he had created a Revocable Trust. At that time, he also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent’s long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent’s assets were transferred to the trust while he was alive. As a result, the will was designed to be a “catch all” so that any stray assets left in the decedent’s estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

Thereafter, the guardian ad litem, who was appointed to represent the interests of the decedent’s daughter, examined the circumstances surrounding the execution of both the trust and the will. A New York Probate Lawyer said in her affidavit of services the guardian ad litem stated that she spent 7.2 hours on the matter, representing a charge of $2,828.00 for services rendered.

A probate proceeding followed and also submitted for decision is the issue of the source of payment for fees awarded to a guardian ad litem.