Probate & Estate Litigation

Published on: June 14, 2012

Family Brings Estate Administration Action

by Stephen Bilkis

A woman resident of Israel died. She was survived by her husband and three children. The middle child filed a petition for letters of estate administration. The middle child’s petition alleged that her mother was an heir of the estate of her uncle and that the Chase Bank, which was the administrator of his uncle’s estate, failed to fully distribute the estate’s assets. The middle child petitioned for letters of estate administration to pursue the claim. The youngest daughter consented to her sister’s appointment. The eldest daughter of the woman who resides in Israel was served by mail and defaulted. Letters of estate administration were issued to the middle child of the deceased woman.

Eight months later, the middle child brought a proceeding to compel the bank to account for its administration of his deceased uncle’s estate. Shortly thereafter, a New York Probate Lawyer said the eldest daughter initiated proceedings in Israel to probate her mother’s will. The instrument left the deceased woman’s estate to her husband. If the husband predeceased her, the middle child receives $1 and the rest of the children will receive the balance of her estate in equal shares. The husband had died as a resident of Israel. His will was admitted to probate in Israel. Under his will, he left $1 to the middle child, $3,000 to the youngest daughter and the balance to the eldest daughter. The eldest daughter is the executrix of her father’s will and the nominated executrix under the proffered Israeli will of her mother.

The middle child filed objections in Israel to the probate of the Israeli will on the ground that her mother lacked testamentary capacity. Brooklyn Probate Lawyers said she also brought a proceeding in Israel to vacate the decree probating her father’s will. The eldest daughter and the bank, acting as trustees of the trust created for the deceased woman under the will of another brother, moved to vacate the letters of administration issued to the middle child. They claimed that the letters should be vacated because the deceased had a will, there were material misstatements in the petition for letters of administration, and she was not fit to serve as fiduciary.

Published on: June 13, 2012

Court Decides Status of Real Estate in Decedent’s Estate

by Stephen Bilkis

The Facts:

On 31 May 1988, a man (the testator) executed a last will and testament in which he devised and bequeathed a life estate interest in premises located at Hopkins Avenue, County of Kings, State of New York, (Hopkins Avenue property) to defendant, including the right for her to collect all rents as they become due for her own use and benefit.

On 25 November 1988, the testator died. On 17 March 1989, letters of administration of the estate of the testator were issued to the testator’s relative. Thereafter, as administratrix, she entered into a contract to sell the subject premises to a Brokerage Corp.

Published on: June 12, 2012

Court Rules on Status of Joint Will

by Stephen Bilkis

The Facts:

On 17 October 1967, a husband and a wife (“wife-one”) executed a joint will.

On 27 September 1971, the wife died and the joint will, insofar as her estate was concerned, was admitted to probate in Kings County (for estate administration; estate litigation). At the time of her death, the husband and the wife owned as tenants by the entirety, two parcels of real estate and had a bank account in their joint names in a Brooklyn bank.

Published on: June 11, 2012

Court Determines Subject Matter Jurisdiction

by Stephen Bilkis

The Facts:

Sometime in 1936, plaintiff and his wife (the deceased), residents of Kings County, entered into an agreement to execute mutual reciprocal and irrevocable wills which neither of the parties was to alter, cancel or revoke without the written consent of the other. The wills were accordingly executed.

In 1954, the wife executed another will. In her will, she devised and bequeathed all her estate, both real and personal, to plaintiff husband.

Published on: June 10, 2012

Trustee Brings Action to be Reimbursed for Expenses

by Stephen Bilkis

The facts:

A mother (hereinafter The Mother) lived with her son (hereinafter The Son). The son was devoted to his mother. A New York Probate Lawyer said she was unable to handle her own affairs, thus, he supervised her medical care. He managed her financial affairs and made sure that she paid her bills timely.

On 25 August 2000, the son died. He was then 64 and his mother was almost 96. The son executed a will dated 23 May 1996. In his will, he left his residuary estate in trust for the benefit of his mother. He named two persons, the petitioners (petitioner-one and petitioner-two), as executors of his will and trustees of the residuary trust. Under the terms of the trust, the trustees were to pay the net income to the mother, quarter-annually. In addition, the trustees were authorized to invade principal for the benefit of the mother; and upon the death of the mother, the trust terminates and that from the principal then remaining, certain amounts would be given to the petitioners and to other individuals.

Published on: June 3, 2012

Petitioner Requests Preliminary Letters

by Stephen Bilkis

A man died on October 28, 2006 leaving a will dated April 27, 2006. The man’s last will nominates an attorney and a friend as executors. He was survived by his two adult children. The man’s friend renounced his appointment.

The will provides that the man’s entire residuary estate shall be distributed to his woman companion. The will specifically disinherits the man’s children. The attorney assigned as executor has petitioned for preliminary letters testamentary.

By order to show cause, the man’s daughter seeks an order denying the issuance of preliminary letters testamentary to the attorney; disqualifying the attorney from serving as executor of the estate; removing the assigned attorney executor as the attorney for the estate; compelling the attorney to comply with discovery demands previously served; compelling the attorney to produce and file with the court an alleged 2004 will of the man; appointing a guardian ad litem to represent the interests of the deceased man’s two infant grandchildren named as beneficiaries in the prior will; appointing the daughter as executor since she was alleged named as executor in the 2004 will; staying the issuance of preliminary letters to the attorney in pending a hearing on the order to show cause; and adjourning the law examinations. The decision addresses only the issue of whether preliminary letters should issue to the attorney.

Published on: June 2, 2012

Court Decides Jurisdiction Issue

by Stephen Bilkis

In an action to recover damages for medical malpractice and lack of informed consent, in which the accused Medical Center commenced a third-party action against the woman as successor executor of the estate of her husband. The woman appeals from an order of the Supreme Court which denied her motion to dismiss the third-party complaint based upon her allegation that her status as personal representative of the estate of her husband was terminated by operation of law.

New York Probate Lawyers said that on July 18, 2002, the complainant underwent surgery at the Medical Center and the woman’s husband served as the complainant’s anesthesiologist. The anesthesiologist died and his father, as the executor of the anesthesiologist’s estate, petitioned the Surrogate’s Court to have the will admitted to probate. The petition to admit the will to probate stated that the anesthesiologist died while a resident of New York, and that his wife was named in the will as successor executor. By decree, the will was admitted to probate and letters testamentary were issued to the anesthesiologist’s father. Thereafter, the father died.

The complainants commenced the main action against the Medical Center. The Medical Center commenced the instant third-party action against the wife, as successor executor of the anesthesiologist’s estate, seeking common-law indemnification. Brooklyn Probate Lawyers said the complainant, a resident of Colorado, retained Colorado attorneys. On behalf of their client, the law firm entered into a stipulation with the Medical Center, in which the complainant admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for the anesthesiologist. The stipulation also stated that the Medical Center will seek no recovery from the Estate of the anesthesiologist except to the extent of any professional liability insurance available to the Estate of the deceased anesthesiologist.

Published on: June 1, 2012

Court Discusses Issuing Preliminary Letters Testementary

by Stephen Bilkis

The Facts:

On 14 December 2005, a decedent died leaving a will dated 13 September 2005 (the “2005 Will”) and a prior will dated 24 January 2003 (the “2003 Will”). The 2003 Will nominates the decedent’s daughter-one as executor and the decedent’s daughter-two as successor executor. The 2005 Will also nominates daughter-one as executor. The decedent was also survived by her other daughter, daughter-three.

Under the 2003 Will, all shares that the decedent had in any companies or corporations is bequeathed to the decedent’s two grandchildren equally and the decedent’s bank accounts to her daughters, daughter-one and daughter-three, equally. The 2003 Will further provides for bequests of tangible personal property. The 2003 Will gives the decedent’s cooperative apartment in equal shares to the two grandchildren. The remainder of the estate is bequeathed in one-third (1/3) shares to each of the decedent’s three daughters.

Published on: May 31, 2012

Petitioner Requests a Contingent Executor

by Stephen Bilkis

The Facts:

On 13 October 2006, a decedent died without a spouse or children and leaving a will dated 5 September 1986. Under the will, in the event that one of the decedent’s brothers (“the brother”), who is the nominated executor, and the decedent’s nephew, the first named contingent executor, predeceased the decedent, failed to qualify, or if the office of executor is otherwise vacant, the decedent’s niece is nominated as the contingent executor.

The first named contingent executor did, in fact, predecease the decedent. Thus, the decedent’s niece is nominated as the contingent executor.

Published on: May 30, 2012

Court Decides Legal Fees for Estate Administration

by Stephen Bilkis

The Facts:

A decedent was survived by his wife, an adult son who is the petitioner herein, and four adult grandchildren. A New York Probate Lawyer said the decedent’s wife is a person under disability and her interests are being represented by a guardian ad litem appointed for that purpose by the court. Although SCPA 1404 examinations were demanded by the respondents, the examinations were never conducted, the parties having promptly entered into settlement negotiations.

The propounded instrument bequeaths the entire estate to the decedent’s lifetime trust, which in turn leaves the entire estate to petitioner, to the exclusion of the surviving spouse and grandchildren. The parties have entered into a stipulation of settlement, subject to the court’s approval, which permits the will’s admission to probate, effectively guarantees the surviving spouse her elective share, and distributes the net estate after payment of debts, administration expenses, and the elective share, into two parts, one part to be distributed to the petitioner and the other to be divided equally among the grandchildren.